Form 8-K RumbleOn, Inc. For: Aug 31

Exhibit 3.1

 

AMENDMENT TO THE

 

AMENDED BYLAWS OF RUMBLEON, INC.

 

WHEREAS, Article IX of the Amended Bylaws (the “Bylaws”) of RumbleOn, Inc. (the “Company”) provides that the Board of Directors of the Company (the “Board”) may alter or repeal the Bylaws; and

 

WHEREAS, the Board has determined it to be in the best interests of the Company to amend the Bylaws as hereinafter set forth.

 

NOW, THEREFORE, pursuant to the authority reserved to the Board, the Bylaws are hereby amended as follows:

 

1.

Article III, Section 2 is amended by deleting it in its entirety and replacing it with the following:

 

NUMBER OF DIRECTORS. The authorized number of directors shall be no fewer than one (1) nor more than nine (9). The exact number of authorized directors shall be set by resolution of the board of directors, within the limits specified above.

 

2.

Except as modified by this Amendment, all of the terms and conditions of the Bylaws shall remain valid and in full force and effect.

 

IN WITNESS WHEREOF, the undersigned, a duly authorized officer of the Company, has executed this instrument as of the 31^st day of August 2021, on behalf of the Board.

 

	RUMBLEON, INC.
	By:	/s/ Marshall Chesrown
		Marshall Chesrown, Chairman

 

Exhibit 4.1

 

THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM.

 

RUMBLEON, INC.

 

FORM OF WARRANT TO PURCHASE CLASS B COMMON STOCK

 

Date of Issuance: August 31, 2021 (“Issuance Date”)

 

Reference is hereby to (x) that certain Warrant to Purchase Class B Common Stock issued by RumbleOn, Inc., a Nevada corporation (the “Company”), to Oaktree Capital Management, L.P. (“Oaktree”) with the date of issuance of March 12, 2021 (as amended by that First Amendment to Warrant to Purchase Class B Common Stock made and entered into as of July 15, 2021, by and between the Company and Oaktree, the “Initial Warrant”) and (y) that certain Assignment of Warrant to Purchase Class B Common Stock, dated as of the date hereof, and executed and effective prior to the execution hereof, by and among the Company, Oaktree and certain other parties signatory thereto, including, without limitation [    ] the registered holder hereof or its permitted assigns (the “Holder”).

 

In connection with the Merger Closing (as defined below), the Company and the Holder have agreed, to amend and restate the Initial Warrant in its entirety as set forth herein.

 

The Company certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Holder is entitled, subject to the terms and conditions set forth below, to purchase from the Company, at the Exercise Price (as defined in Section 1(c) below) then in effect, upon surrender of this Warrant to Purchase Class B Common Stock (including any Warrants to purchase Class B Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”), at any time or times on or after the Issuance Date (as defined below), but not after 11:59 p.m., New York Time, on the Expiration Date (as defined below), the Warrant Shares (as defined below). Except as otherwise defined herein, capitalized terms in this Warrant shall have the meanings set forth in Section 18.

 

 

1. EXERCISE OF WARRANT.

 

(a) Mechanics of Exercise. Subject to the terms and conditions hereof, this Warrant may be exercised by the Holder on any day on or after the Exercisability Date, in whole or in part, by (i) delivery of a written notice (including via email), in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise this Warrant to the Company, and (ii) if the Holder is not electing a Cashless Exercise (as defined below) pursuant to Section 1(d) of this Warrant, payment to the Company of an amount equal to the applicable Exercise Price multiplied by the number of Warrant Shares as to which this Warrant is being exercised (the “Aggregate Exercise Price”) in cash or wire transfer of immediately available funds (a “Cash Exercise”). The Holder shall not be required to surrender this Warrant in order to effect an exercise hereunder, provided, that in the event of an exercise of this Warrant for all Warrant Shares then issuable hereunder, the Holder shall surrender this Warrant to the Company by the third (3rd) Trading Day following the Share Delivery Date (as defined below). On or before the first (1st) Trading Day following the date on which the Company has received the Exercise Notice, the Company shall transmit by email an acknowledgement of confirmation of receipt of the Exercise Notice to the Holder. No ink original or medallion guarantee shall be required on any Exercise Notice. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by (x)(i) crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (or any equivalent or replacement system) if the Company is then a participant in such system and if the Warrant Shares may be so delivered, and (ii) either (with respect to the Common Stock) (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 (assuming Cashless Exercise of the Warrant), or (y) otherwise by physical delivery of a certificate or copy of book-entry form representing such shares, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Exercise Notice, by the date that is the earlier of (i) two (2) Trading Days after the delivery to the Company of the Exercise Notice, and (ii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Exercise Notice (such date, the “Share Delivery Date”), provided, that, except in the case of a Cashless Exercise of the Warrant, the Company shall have received the Aggregate Exercise Price payable by the Holder for the Warrant Shares purchased hereunder on or prior to the applicable Share Delivery Date. If this Warrant is submitted in connection with any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise is greater than the number of Warrant Shares being acquired upon an exercise, then the Company shall as soon as practicable and in no event later than two (2) Trading Days after any exercise and at the Company’s own expense, issue a new Warrant (in accordance with Section 8(e)) representing the right to purchase the number of Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which this Warrant is exercised. The Company shall pay any and all taxes that may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant. The Company agrees that the Transfer Agent shall at all times be a participant in the FAST program (or any equivalent or replacement program) so long as this Warrant remains outstanding and exercisable. Upon delivery of the Exercise Notice, so long as the Aggregate Exercise Price, in the case of a Cash Exercise, is delivered to the Company on or before the first (1st) Trading Day following delivery of the Exercise Notice, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date such Warrant Shares are issued and deposited into the Holder’s account with the Transfer Agent. If the Aggregate Exercise Price, in the case of a Cash Exercise, is delivered to the Company any time after the first (1st) Trading Day following delivery of the Exercise Notice, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised on the date of delivery of the Aggregate Exercise Price.

 

(b) Failure to Deliver and Buy-In Remedy. If the Company fails for any reason (other than failure to receive any applicable Aggregate Exercise Price) to deliver to the Holder the Warrant Shares subject to an Exercise Notice by the Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the Weighted Average Price of the Class B Common Stock on the date of the applicable Exercise Notice), $10 per Trading Day (increasing to $20 per Trading Day on the fifth (5th) Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise as provided in the next sentence, provided, however, that Holder shall not be entitled to any liquidated damages pursuant to this sentence if Holder is entitled to a cash payment in connection with a Buy-In. Any payments made pursuant to this Section 1(b) shall not constitute the Holder’s exclusive remedy for such events; provided further, however, that any payments made by the Company pursuant to this Section 1(b) shall reduce the amount of any damages that the Holder may be entitled to as a remedy for such events. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 1(a) by the Share Delivery Date, then the Holder will have the right to rescind such exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to issue and deposit into the Holder’s account with the Transfer Agent such number of Warrant Shares to which the Holder is entitled upon the Holder’s exercise pursuant to an exercise on or before the Share Delivery Date, and if after such Share Delivery Date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Class B Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (i) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Class B Common Stock, so purchased in such Buy-In exceeds (y) the amount obtained by multiplying (1) the number of shares of Class B Common Stock purchased in such Buy-In by (2) the price at which the sell order giving rise to such Buy-In was executed, and (ii) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to Holder the number of shares of Class B Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder (in which case, if Holder has not previously delivered to the Company the Aggregate Exercise Price for such shares of Class B Common Stock, Holder shall be required to deliver such Aggregate Exercise Price to the Company prior the delivery of such shares of Class B Common Stock).

 

 

(c) Exercise Price. For purposes of this Warrant, “Exercise Price” shall mean $33.00 per share of Common Stock, subject to adjustments as set forth in Section 2.

 

(d) Cashless Exercise. Notwithstanding anything contained herein to the contrary, the Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate Exercise Price, elect instead to receive upon such exercise the “Net Number” of shares of Class B Common Stock determined according to the following formula (a “Cashless Exercise”):

 

Net Number = (A x B) - (A x C)

B

 

For purposes of the foregoing formula:

 

A= the total number of Warrant Shares with respect to which this Warrant is then being exercised.

 

B= the Weighted Average Price of the shares of Class B Common Stock (as reported by Bloomberg) on the date immediately preceding the date of the Exercise Notice.

 

C= the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.

 

The Company hereby covenants and agrees that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Holder pursuant to Rule 3(a)(9) of the Securities Act.

 

(e) No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share that the Holder would otherwise be entitled to purchase upon such exercise, the Company shall pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price.

 

2. ADJUSTMENT OF EXERCISE PRICE. The Exercise Price for the Warrant Shares shall be subject to adjustment (without duplication) upon the occurrence of any of the following events at any time after the Issuance Date:

 

(a) Stock Dividends, Combinations and Splits. The issuance of Common Stock as a dividend or distribution to all holders of Class B Common Stock, or a subdivision, combination, split, reverse split or reclassification of the outstanding shares of Class B Common Stock into a greater or smaller number of shares, in which event the Exercise Price shall be adjusted based on the following formula:

 

where:

 

E1=

the Exercise Price in effect immediately after (i) 9:00 a.m., New York City time (the “Open of Business”) on the first date on which the Class B Common Stock can be traded without the right to receive an issuance or distribution (the “Ex-Date”) in the case of a dividend or distribution or (ii) the consummation of the transaction in the case of a subdivision, combination, split, reverse split or reclassification;

 

E0=

the Exercise Price in effect immediately prior to (i) the Open of Business on the Ex-Date in the case of a dividend or distribution or (ii) the consummation of the transaction in the case of a subdivision, combination, split, reverse split or reclassification;

 

N0=

the number of shares of Class B Common Stock outstanding immediately prior to (i) the Open of Business on the Record Date in the case of a dividend or distribution or (ii) the consummation of the transaction in the case of a subdivision, combination, split, reverse split or reclassification; and

 

N1=

the number of shares of Class B Common Stock equal to (i) in the case of a dividend or distribution, the sum of the number of shares outstanding immediately prior to the Open of Business on the Record Date for such dividend or distribution plus the total number of shares issued pursuant to such dividend or distribution or (ii) in the case of a subdivision, combination, split, reverse split or reclassification, the number of shares outstanding immediately after such subdivision, combination, split, reverse split or reclassification.

 

 

Such adjustment shall become effective immediately after (i) the Open of Business on the Ex-Date in the case of a dividend or distribution or (ii) the consummation of the transaction in the case of a subdivision, combination, split, reverse split or reclassification. If any dividend or distribution or subdivision, combination, split, reverse split or reclassification of the type described in this Section 2 is declared or announced but not so paid or made, the Exercise Price shall again be adjusted to the Exercise Price that would then be in effect if such dividend or distribution or subdivision, combination, split, reverse split or reclassification had not been declared or announced, as the case may be. If any event occurs of the type contemplated by the provisions of this Section 2(a) but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features to the holders of the Company’s equity securities), then the Board of Directors will make an appropriate adjustment in the Exercise Price and the number of Warrant Shares so as to protect the rights of the Holder; provided, that no such adjustment pursuant to this paragraph will increase the Exercise Price or decrease the number of Warrant Shares as otherwise determined pursuant to this Section 2.

 

(b) Below Exercise Price Issuances. Other than any dividend or distribution covered in Section 2(c), below, if there is an issuance of Convertible Securities (other than the issuance of Class B Common Stock upon the exercise of any Convertible Securities outstanding, and at the Effective Price in effect (as may be adjusted as provided for in the instrument governing such Convertible Security), as of the date of the Merger Agreement) with an Effective Price lower than the Exercise Price, the Exercise Price will be adjusted to be the Effective Price of such Convertible Securities being issued. Such adjustment shall become effective immediately after the Open of Business on the second Business Day preceding (i) the Ex-Date in the case of a dividend or distribution or (ii) the date of the issuance in the case of an issuance other than a dividend or distribution. In the event that an issuance of such Convertible Securities is announced but such Convertible Securities are not so issued, the Exercise Price shall again be adjusted to be the Exercise Price that would then be in effect if such issuance had not occurred.

 

(c) Other Dividends and Distributions. The issuance as a dividend or distribution to any holders of Class B Common Stock of evidences of indebtedness, shares of capital stock or other securities (other than Common Stock that is the subject of Section 2(a) above, or Purchase Rights that are the subject of Section 4(a) below), cash or other property, in which event the Exercise Price will be adjusted based on the following formula:

 

where:

 

E1=

the Exercise Price in effect immediately after the Open of Business on the Ex-Date for such dividend or distribution;

 

E0=

the Exercise Price in effect immediately prior to the Open of Business on the Ex-Date for such dividend or distribution;

 

P=

the Weighted Average Price of a share of Class B Common Stock immediately prior to the Open of Business on the second Business Day preceding the Ex-Date for such dividend or distribution; and

 

FMV=

the Fair Market Value of the portion of such dividend or distribution applicable to one share of Class B Common Stock as of the Open of Business on the Ex-Date for such dividend or distribution.

 

 

Such decrease shall become effective immediately after the Open of Business on the Ex-Date for such dividend or distribution. In the event that such dividend or distribution is declared or announced but not so paid or made, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such distribution had not been declared or announced.

 

(d) Tender or Exchange Offer. The payment in respect of any tender offer or exchange offer by the Company for outstanding Class B Common Stock on a pro rata basis, where the cash and Weighted Average Price of any other consideration included in the payment per share of the Class B Common Stock exceeds the Weighted Average Price of a share of Class B Common Stock as of the Open of Business on the second Business Day preceding the expiration date of the tender or exchange offer (the “Offer Expiration Date”), in which event the Exercise Price will be adjusted based on the following formula:

 

where:

 

E1=

the Exercise Price in effect immediately after the Close of Business on the Offer Expiration Date;

 

E0=

the Exercise Price in effect immediately prior to the Close of Business on the Offer Expiration Date;

 

N0=

the number of shares of Class B Common Stock outstanding immediately prior to the expiration of the tender or exchange offer (prior to giving effect to the purchase or exchange of shares);

 

N1=

the number of shares of Class B Common Stock outstanding immediately after the expiration of the tender or exchange offer (after giving effect to the purchase or exchange of shares);

 

A=

the aggregate cash and Weighted Average Price of any other consideration payable for shares of Class B Common Stock purchased in such tender offer or exchange offer; and

 

P=

the Weighted Average Price of a share of Class B Common Stock as of the Open of Business on the second Business Day preceding the Offer Expiration Date.

 

An adjustment, if any, to the Exercise Price pursuant to this Section 2(d) shall become effective immediately after the Close of Business on the Offer Expiration Date. In the event that the Company or a Subsidiary of the Company is obligated to purchase shares of Class B Common Stock pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such tender offer or exchange offer had not been made. Except as set forth in the preceding sentence, if the application of this Section 2(d) to any tender offer or exchange offer would result in an increase in the Exercise Price, no adjustment shall be made for such tender offer or exchange offer under this Section 2(d).

 

(e) Multiple Adjustments. If any single action would require adjustment of the Exercise Price pursuant to more than one subsection of this Section 2, only one adjustment shall be made and such adjustment shall be the amount of adjustment that has the highest, relative to the rights and interests of the registered holders of the Warrants then outstanding, absolute value. For the purpose of calculations pursuant to this Section 2, the number of shares of Class B Common Stock outstanding shall be based solely on the number of shares of Class B Common Stock outstanding on the applicable date of determination, without giving effect to the conversion of any Convertible Securities outstanding as of such date.

 

 

(f) Adjustment Timing. Solely with respect to an exercise of this Warrant for Class B Common Stock, notwithstanding anything to the contrary set forth in this Section 2 or any other provision of this Warrant, if an Exercise Price adjustment becomes effective on any Ex-Date, and a Holder that has exercised this Warrant on or after such Ex-Date and on or prior to the related Record Date would be treated as the record holder of the Class B Common Stock on or prior to such Record Date, then, the Exercise Price adjustment relating to such Ex-Date will not be made for such exercising Holder. Instead, such Holder will be treated as if it were the record owner of shares of Class B Common Stock on an un-adjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.

 

3. ADJUSTMENTS TO NUMBER OF WARRANTS. Concurrently with any adjustment to the Exercise Price under Section 2 (other than Section 2(b)), the number of Warrant Shares hereunder will be adjusted such that the number of Warrant Shares in effect immediately following the effectiveness of such adjustment will be equal to the number of Warrant Shares in effect immediately prior to such adjustment, multiplied by a fraction, (i) the numerator of which is the Exercise Price in effect immediately prior to such adjustment, and (ii) the denominator of which is the Exercise Price in effect immediately following such adjustment.

 

4. PURCHASE RIGHTS; FUNDAMENTAL TRANSACTIONS.

 

(a) Purchase Rights. If at any time after the Issuance Date and prior to the Expiration Date the Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to all of the record holders of any class of shares of Class B Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Class B Common Stock acquirable upon complete exercise of this Warrant, assuming a Cash Exercise for Class B Common Stock (in both cases, and without regard to any limitations on the exercise of this Warrant) on the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Class B Common Stock are to be determined for the grant, issue or sale of such Purchase Rights.

 

(b) Fundamental Transactions. Upon the occurrence of any Fundamental Transaction in which the Company is neither the Successor Entity nor the Parent Entity of the Successor Entity, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation of any Fundamental Transaction pursuant to which holders of shares of Class B Common Stock are entitled to receive shares of stock, securities, cash, assets or any other property with respect to or in exchange for shares of Class B Common Stock, the Successor Entity shall deliver to the Holder confirmation that there shall be issued upon exercise of this Warrant at any time after the consummation of such Fundamental Transaction, in lieu of, or in addition to, the shares of the Class B Common Stock (or other share of stock, securities, cash, assets or other property purchasable upon the exercise of the Warrant prior to such Fundamental Transaction), such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights), if any, that the Holder would have been entitled to receive upon the happening of such Fundamental Transaction had this Warrant been exercised immediately prior to such Fundamental Transaction, as adjusted in accordance with the provisions of this Warrant. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any Fundamental Transaction pursuant to which holders of shares of Class B Common Stock are entitled to receive shares of stock, securities, cash, assets or any other property with respect to or in exchange for shares of Class B Common Stock, the Company shall make appropriate provision to ensure that the Holder will thereafter have the right to receive upon exercise of this Warrant within thirty (30) days after the consummation of the Fundamental Transaction but, in any event, prior to the Expiration Date, in lieu of, or in addition to, the Warrant Shares (or other securities, cash, assets or other property) purchasable upon the exercise of the Warrant prior to such Fundamental Transaction, such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights) which the Holder would have been entitled to receive upon the happening of such Fundamental Transaction had the Warrant been exercised immediately prior to such Fundamental Transaction.

 

 

5. RESERVATION OF WARRANT SHARES. The Company covenants that it will at all times reserve and keep available out of the aggregate of its authorized but unissued and otherwise unreserved shares of Class B Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as herein provided, at least a number of shares of Class B Common Stock equal to 100% of the number of shares of Class B Common Stock which are then issuable and deliverable upon the Cash Exercise of this entire Warrant for shares of Class B Common Stock, assuming a Cash Exercise of the Warrant (the “Required Reserve Amount”), free from preemptive or any other contingent purchase rights of Persons other than the Holder (taking into account the adjustments and restrictions in Section 2). The Company covenants that all shares of Class B Common Stock so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and nonassessable. The Company will take all such actions as may be reasonably necessary, including but not limited to seeking stockholder approval, to assure that such shares of Class B Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any Eligible Market upon which the Class B Common Stock may be listed.

 

6. INSUFFICIENT AUTHORIZED SHARES. If at any time while this Warrant remains outstanding the Company does not have reserved for issuance upon exercise of this Warrant at least the then Required Reserve Amount (an “Authorized Share Failure”), then the Company shall immediately take all action necessary to increase the Company’s authorized shares of Class B Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for this Warrant then outstanding. Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than one hundred and twenty (120) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its stockholders for the approval of an increase in the number of authorized shares of Class B Common Stock. In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use its reasonable best efforts to solicit its stockholders’ approval of such increase in authorized shares of Class B Common Stock and to cause the Board of Directors to recommend to the stockholders that they approve such proposal.

 

7. WARRANT HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, the Holder, solely in such Person’s capacity as a Holder, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity as a Holder, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder which such Person is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company.

 

8. REGISTRATION AND REISSUANCE OF WARRANTS.

 

(a) Registration of Warrant. The Company shall register this Warrant, upon the records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary. The Company shall also register any transfer, exchange, reissuance or cancellation of any portion of this Warrant in the Warrant Register. This Warrant shall automatically be cancelled at 11:59:01 p.m., New York time, on the Expiration Date and upon such cancellation, the Company shall register the cancellation of this Warrant in the Warrant Register.

 

 

(b) Transfer of Warrant. This Warrant may be offered for sale, sold, transferred or assigned without the consent of the Company, except as may otherwise be required by applicable securities laws. Subject to applicable securities laws, if this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, together with all applicable transfer taxes and all additional documentation (including, without limitation, an opinion of counsel reasonably satisfactory to the Company) reasonably requested by the Company to confirm that any such transfer of this Warrant complies with applicable securities laws, whereupon the Company will promptly issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 8(e)), registered as the Holder may request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 8(e)) to the Holder representing the right to purchase the number of Warrant Shares not being transferred. The acceptance and execution of the new Warrant by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations in respect of the new Warrant that the Holder has in respect of this Warrant.

 

(c) Lost, Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and, in the case of loss, theft or destruction, if requested by the Company, of any indemnification undertaking by the Holder to the Company in customary form by the Holder to the Company (but without the requirement to post a bond) and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 8(e)) representing the right to purchase the Warrant Shares then underlying this Warrant.

 

(d) Exchangeable for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, together with all applicable transfer taxes, for a new Warrant or Warrants (in accordance with Section 8(e)) representing in the aggregate the right to purchase the number of Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares as is designated by the Holder at the time of such surrender; provided, however, that the Company shall not be required to issue new Warrants for fractional Warrant Shares hereunder.

 

(e) Issuance of New Warrants. Whenever the Company or its Transfer Agent, as directed by the Company, is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant shall (i) be of like tenor with this Warrant, (ii) represent, as indicated on the face of such new Warrant, the right to purchase the Warrant Shares then underlying this Warrant, (iii) have an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date and (iv) have the same terms and conditions as this Warrant.

 

9. REGISTRATION RIGHTS.

 

(a) Filing of Registration Statement. As soon as reasonably practicable, but in no event later than twenty (20) days following the Merger Closing (such date of filing is referred to as the “Filing Date”), the Company shall file a registration statement covering the resale of the Warrant Shares on a registration statement (the “Registration Statement”) with the SEC and effect the registration, qualifications or compliances (including, without limitation, the execution of any required undertaking to file post-effective amendments, appropriate qualifications or exemptions under applicable blue sky or other state securities laws and appropriate compliance with applicable securities laws, requirements or regulations) as promptly as possible after the filing thereof, but in any event prior to the date that is sixty (60) days after the Filing Date.

 

(b) Expenses. All registration expenses incurred in connection with any registration, qualification, exemption or compliance pursuant to this Section 9 shall be borne by the Company.

 

 

(c) Registration Defaults. The Company further agrees that, in the event that the Registration Statement (i) has not been filed with the SEC by the date such filing is required pursuant to Section 9(a), (ii) has not been declared effective by the SEC by the date such filing is required pursuant to Section 9(a) (or, in the event the Company receives comments on such Registration Statement, the date that is ninety (90) days after the Filing Date), or (iii) after the Registration Statement is declared effective by the SEC, is suspended by the Company or ceases to remain continuously effective as to all Warrant Shares for which it is required to be effective, other than, in each case, within the time period(s) permitted by Section 9(f)(ii) (each such event referred to in clauses (i), (ii) and (iii), (a “Registration Default”)), for any thirty-day period (a “Penalty Period”) during which the Registration Default remains uncured (which initial thirty-day period shall commence on the fifth Business Day after the date of such Registration Default if such Registration Default has not been cured by such date), the Exercise Price then in effect shall be reduced by an amount equal to one percent (1%) of such Exercise Price for each Penalty Period during which the Registration Default remains uncured; provided, however, that if the Holder fails to provide the Company with any information that is required to be provided in the Registration Statement with respect to the Holder as set forth herein, then the commencement of the Penalty Period described above shall be extended until five Business Days following the date of receipt by the Company of such required information; provided further, that the amount payable to the Holder hereunder for any partial Penalty Period shall be prorated for the number of actual days during such Penalty Period during which a Registration Default remains uncured. The Company shall deliver said cash payment to the Holder by the fifth Business Day after the end of such Penalty Period. If the Company fails to pay said cash payment to the Holder in full by the fifth Business Day after the end of such Penalty Period, the Company will pay interest thereon at a rate of ten percent (10%) per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such liquidated damages are due until such amounts, plus all such interest thereon, are paid in full.

 

(d) Registration Period Covenants. In the case of the registration, qualification, exemption or compliance effected by the Company pursuant to this Warrant, the Company shall, upon reasonable request, inform the Holder as to the status of such registration, qualification, exemption and compliance. At its expense, during the Registration Period, the Company shall:

 

(i) except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of the Registration Statement under Section 9(f)(ii), use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws that the Company determines to obtain, continuously effective with respect to the Holder, and to keep such Registration Statement free of any material misstatements or omissions, until the later of the following: (i) the second anniversary of the Issuance Date and (ii) the date all Warrant Shares may be sold under Rule 144 during any 90 day period without volume or manner of sale limitations. The period of time during which the Company is required hereunder to keep the Registration Statement effective is referred to herein as the “Registration Period;”

 

(ii) advise the Holders:

 

(A) within two Business Days when the Registration Statement or any amendment thereto has been filed with the SEC and when the Registration Statement or any post-effective amendment thereto has become effective;

 

(B) within five Business Days of any request by the SEC for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information;

 

(C) within five Business Days of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for such purpose;

 

(D) within five Business Days of the receipt by the Company of any notification with respect to the suspension of the qualification of the Warrant Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

 

(E) within five Business Days of the occurrence of any event that requires the making of any changes in the Registration Statement or the prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in the light of the circumstances under which they were made) not misleading; provided that, the Company shall not be required to provide, and shall not provide, the Holder or its representatives with material, non-public information unless the Holder agrees to receive such information and enters into a written confidentiality agreement with the Company in a form reasonably acceptable to the Company;

 

 

(F) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable;

 

(G) promptly deliver to the Holder, without charge, as many copies of the prospectus included in such Registration Statement and any amendment or supplement thereto as the Holder may reasonably request in writing; and the Company consents to the use, consistent with the provisions hereof, of the prospectus or any amendment or supplement thereto by the Holder of Warrant Shares in connection with the offering and sale of the Warrant Shares covered by the prospectus or any amendment or supplement thereto;

 

(H) if the Holder so requests in writing, deliver to the Holder, without charge, (i) one copy of the following documents, other than those documents available via EDGAR: (A) its annual report to its stockholders, if any (which annual report shall contain financial statements audited in accordance with generally accepted accounting principles in the United States of America by a firm of certified public accountants of recognized standing), (B) if not included in substance in its annual report to stockholders, its annual report on Form 10-K (or similar form), (C) its definitive proxy statement with respect to its annual meeting of stockholders, (D) each of its quarterly reports to its stockholders, and, if not included in substance in its quarterly reports to stockholders, its quarterly report on Form 10-Q (or similar form), and (E) a copy of the full Registration Statement (the foregoing, in each case, excluding exhibits); and (ii) if explicitly requested, all exhibits excluded by the parenthetical to the immediately preceding clause (E);

 

(I) prior to any public offering of Warrant Shares pursuant to any Registration Statement, promptly take such actions as may be necessary to register or qualify or obtain an exemption for offer and sale under the securities or blue sky laws of such United States jurisdictions as any such Holders reasonably request in writing, provided that the Company shall not for any such purpose be required to qualify generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction, and do any and all other acts or things reasonably necessary or advisable to enable the offer and sale in such jurisdictions of the Warrant Shares covered by such Registration Statement;

 

(J) upon the occurrence of any event contemplated by Section 9(d)(ii)(E) above, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of the Registration Statement, the Company shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to the Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Warrant Shares included therein, the prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;

 

(K) otherwise use its commercially reasonable efforts to comply in all material respects with all applicable rules and regulations of the SEC that could affect the sale of the Warrant Shares;

 

(L) use its commercially reasonable efforts to cause all Warrant Shares to be listed on each securities exchange or market, if any, on which equity securities issued by the Company have been listed;

 

(M) use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Warrant Shares contemplated hereby and to enable the Holders to sell Warrant Shares under Rule 144;

 

(N) provide to the Holder and its representatives, if requested, the opportunity to conduct a reasonable inquiry of the Company’s financial and other records during normal business hours and make available on reasonable prior notice and during normal business hours its officers, directors and employees for questions regarding information that the Holder may reasonably request in order to fulfill any due diligence obligation on its part; and

 

  

(O) at the Holder’s expense, permit a single counsel for the Holder to review the Registration Statement and all amendments and supplements thereto, at least two Business Days prior to the filing thereof with the SEC;

 

(iii) upon request from the Holder, take all customary actions, and to cause the Transfer Agent to take all reasonable actions, necessary to remove any legend on the Warrant Shares at the earliest possible time permitted by applicable law; and

 

(iv) provide a legal opinion of the Company's outside counsel, dated the effective date of such Registration Statement, with respect to the Registration Statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature.

 

(e) Indemnity.

 

(i) To the extent permitted by law, the Company shall indemnify the Holder and each Person controlling the Holder within the meaning of Section 15 of the Act, with respect to which any registration that has been effected pursuant to this Section 9, against all claims, losses, damages and liabilities (or action in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened (subject to Section 9(e)(iii) below), arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in the Registration Statement, prospectus, any amendment or supplement thereof, or other document incident to any such registration, qualification or compliance or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances in which they were made, or any violation by the Company of any rule or regulation promulgated by the Act applicable to the Company and relating to any action or inaction required of the Company in connection with any such registration, qualification or compliance, and will reimburse the Holder and each Person controlling the Holder, for reasonable legal and other out-of-pocket expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action as incurred; provided that the Company will not be liable in any such case to the extent that any untrue statement or omission or allegation thereof is made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holder for use in preparation of such Registration Statement, prospectus, amendment or supplement; provided further that the Company will not be liable in any such case where the claim, loss, damage or liability arises out of or is related to the failure of the Holder to comply with the covenants and agreements contained in this Warrant respecting sales of Warrant Shares, and except that the foregoing indemnity agreement is subject to the condition that, insofar as it relates to any such untrue statement or alleged untrue statement or omission or alleged omission made in the preliminary prospectus but eliminated or remedied in the amended prospectus on file with the SEC at the time the Registration Statement becomes effective or in the amended prospectus filed with the SEC pursuant to Rule 424(b) or in the prospectus subject to completion under Rule 434 of the Act, which together meet the requirements of Section 10(a) of the Act (the “Final Prospectus”), such indemnity shall not inure to the benefit of the Holder or any such controlling Person, if a copy of the Final Prospectus furnished by the Company to the Holder for delivery was not furnished to the person or entity asserting the loss, liability, claim or damage at or prior to the time such furnishing is required by the Act and the Final Prospectus would have cured the defect giving rise to such loss, liability, claim or damage.

 

(ii) The Holder will severally, and not jointly, indemnify the Company, each of its directors and officers, and each Person who controls the Company within the meaning of Section 15 of the Act, against all claims, losses, damages and liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened (subject to Section 9(e)(iii) below), arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in the Registration Statement, prospectus, or any amendment or supplement thereof, incident to any such registration, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances in which they were made, and will reimburse the Company, such directors and officers, and each Person controlling the Company for reasonable legal and any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action as incurred, in each case to the extent, but only to the extent, that such untrue statement or omission or allegation thereof is made in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holder about the Holder for use in preparation of the Registration Statement, prospectus, amendment or supplement; provided that the indemnity shall not apply to the extent that such claim, loss, damage or liability results from the fact that a current copy of the prospectus was not made available to the person or entity asserting the loss, liability, claim or damage at or prior to the time such furnishing is required by the Act and the Final Prospectus would have cured the defect giving rise to such loss, claim, damage or liability. Notwithstanding the foregoing, the Holder’s aggregate liability pursuant to this subsection (ii) shall be limited to the net amount received by the Holder from the sale of the Warrant Shares giving rise to such claims, losses, damages and liabilities (and actions in respect thereof).

 

 

(iii) Each party entitled to indemnification under this Section 9(e) (the “Indemnified Party”) shall give notice to the party required to provide indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party (at its expense) to assume the defense of any such claim or any litigation resulting therefrom; provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld or delayed), and the Indemnified Party may participate in such defense at such Indemnified Party’s expense; provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Warrant, unless such failure is materially prejudicial to the Indemnifying Party in defending such claim or litigation. An Indemnifying Party shall not be liable for any settlement of an action or claim effected without its written consent (which consent will not be unreasonably withheld or delayed). No Indemnifying Party, in its defense of any such claim or litigation, shall, except with the consent (such consent not to be unreasonably withheld or delayed) of the Indemnified Party consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. 

 

(iv) If the indemnification provided for in this Section 9(e) is held by a court of competent jurisdiction to be unavailable to an Indemnified Party or is insufficient to hold such Indemnified Party harmless with respect to any loss, liability, claim, damage or expense referred to therein, then the Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the statements or omissions that resulted in such loss, liability, claim, damage or expense as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Notwithstanding the foregoing, the Holder’s aggregate liability pursuant to this subsection (iv) shall be limited to the net amount received by the Holder from the sale of Warrant Shares giving rise to such loss, liability, claim, damage or expense (or actions in respect thereof) less all other amounts paid as damages in respect thereto.

 

(f) Additional Covenants and Agreements of the Holder.

 

(i) The Holder agrees that, upon receipt of any notice from the Company of the happening of any event requiring the preparation of a supplement or amendment to a prospectus relating to Warrant Shares so that, as thereafter delivered to the Holder, such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, the Holder will forthwith discontinue disposition of Warrant Shares pursuant to the Registration Statement and prospectus contemplated by Section 9(a) until its receipt of copies of the supplemented or amended prospectus from the Company and, if so directed by the Company, the Holder shall deliver to the Company all copies, other than permanent file copies then in the Holder’s possession, of the prospectus covering such Warrant Shares current at the time of receipt of such notice.

 

(ii) The Holder shall suspend, upon written request of the Company, any disposition of Warrant Shares pursuant to the Registration Statement and prospectus contemplated by Section 9(a) during no more than 90 calendar days (which need not be consecutive days) during any 12-month period to the extent that the Board of Directors of the Company determines in good faith that the sale of Warrant Shares under the Registration Statement would be reasonably likely to cause a violation of the Act or Exchange Act; provided, that, in the event the Company requests such suspension, then the Expiration Date shall be extended by a number of Trading Days equal to the number of Trading Days that occur during such suspension.

 

 

(iii) As a condition to the inclusion of its Warrant Shares, the Holder shall furnish to the Company such information regarding the Holder and the distribution proposed by the Holder as the Company may reasonably request in writing, including completing a Registration Statement questionnaire in the form provided by the Company, or as shall be required in connection with any registration referred to in this Section 9.

 

(iv) The Holder hereby covenants with the Company (A) not to make any sale of the Warrant Shares without effectively causing the prospectus delivery requirements under the Act to be satisfied, and (B) if such Warrant Shares are to be sold by any method or in any transaction other than on a national securities exchange, Nasdaq or in the over-the-counter market, in privately negotiated transactions, or in a combination of such methods, to notify the Company at least five Business Days prior to the date on which the Holder first offers to sell any such Warrant Shares.

 

The Holder acknowledges and agrees that the Warrant Shares sold pursuant to the Registration Statement are not transferable on the books of the Company unless the stock certificate submitted to the Transfer Agent evidencing such Warrant Shares is accompanied by a certificate reasonably satisfactory to the Company to the effect that (A) the Warrant Shares have been sold in accordance with such Registration Statement and (B) the requirement of delivering a current prospectus has been satisfied.

 

(v) The Holder agrees not to take any action with respect to any distribution deemed to be made pursuant to such Registration Statement that would constitute a violation of Regulation M under the Exchange Act or any other applicable rule, regulation or law.

 

(vi) At the end of the Registration Period, the Holders shall discontinue sales of shares pursuant to such Registration Statement upon receipt of notice from the Company of its intention to remove from registration the shares covered by such Registration Statement which remain unsold, and such Holders shall notify the Company of the number of shares registered which remain unsold immediately upon receipt of such notice from the Company.

 

(g) Additional Covenants and Agreements of the Company. With a view to making available to the Holder the benefits of certain rules and regulations of the SEC that at any time permit the sale of the Warrant Shares to the public without registration, so long as the Holder still own Warrant Shares, the Company shall use its commercially reasonable efforts to:

 

(i) make and keep public information available, as those terms are understood and defined in Rule 144, at all times;

 

(ii) file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and

 

so long as the Holder owns any Warrant Shares, make available or furnish to the Holder, upon any reasonable request, a written statement by the Company as to its compliance with Rule 144 and of the Exchange Act, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents of the Company as the Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing the Holder to sell any such securities without registration.

 

(h) Assignment of Registration Rights. The rights to cause the Company to register Warrant Shares granted to the Holder by the Company under Section 9(a) may be assigned by the Holder in connection with a transfer by the Holder to a transferee of the Warrants and all Warrant Shares, provided, however, that (i) such transfer complies with all applicable securities laws and with the terms and provisions of the Warrant; (ii) the Holder gives prior written notice to the Company; and (iii) such transferee agrees in writing to comply with the terms and provisions of the Warrant, and has provided the Company with a completed Registration Statement questionnaire in such form as is reasonably requested by the Company.

 

 

10. CERTAIN TAX MATTERS.

 

(a) No Deductions or Withholdings. The grant of this Warrant shall be made free and clear of, and without any deduction or withholding for or on account of, any current or future taxes, levies, imposts, duties, charges or other deductions or withholdings levied by any national, state, provincial or local taxing authority, or will be grossed up by Company for such amounts.

 

(b) Cooperation. In addition, and in connection with the ownership by Holder of this Warrant and any Class B Common Stock issuable upon the exercise of this Warrant, Company shall (and shall cause its subsidiaries to) reasonably cooperate with the Holder, and use commercially reasonable efforts to provide the Holder with all reasonably requested information, records, and documents related to Company and its subsidiaries that are necessary for, the completion of tax and information returns of the Holder and its Affiliates (or their direct or indirect equity owners) and their compliance with any applicable tax laws, including with respect to withholding tax obligations. Without limiting the generality of the foregoing, (x) in the event that Company makes or has made any actual or deemed distribution to its stockholders, Company shall make commercially reasonable efforts to provide to the Holder such information regarding the current and accumulated “earnings and profits” of Company (including any projections with respect to current earnings and profits) as the Holder may reasonably request in order to determine what portion (if any) of any such distribution is a dividend for U.S. federal income tax purposes and (y) Company shall (1) provide to the Holder, upon written request and within thirty (30) days following such request, either (A) a certification that Company is not a United States real property holding company, in accordance with Treasury Regulations Sections 1.897-2(g)(1)(ii) and 1.897-2(h)(1) or (B) written notice of its legal inability to provide such a certification, and (2) in connection with the provision of any certification pursuant to the preceding clause (1)(A), comply with the notice provisions set forth in Treasury Regulations Section 1.897-2(h)(2).

 

(c) Cashless Exercise. If the Holder elects to exercise this Warrant using the Cashless Exercise method of payment, the Company, upon request of the Holder, shall use commercially reasonable efforts to structure the exercise of this Warrant in such a manner (as requested by the Holder) as to maximize the after-tax returns to the Holder and its Affiliates (or their direct or indirect equity owners), including, at the Holder’s request, by treating the exercise as a recapitalization within the meaning of Code Section 368(a)(1)(E).

 

11. NOTICES. Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in writing, (a) if delivered from within the domestic United States, by first-class registered or certified airmail, or nationally recognized overnight express courier, postage prepaid, or by email or (b) if delivered from outside the United States, by International Federal Express or by email and (c) will be deemed given (i) if delivered by first-class registered or certified domestic mail, three (3) Business Days after so mailed, (ii) if delivered by nationally recognized overnight carrier, one (1) Business Day after so mailed, (iii) if delivered by International Federal Express, two (2) Business Days after so mailed, and (iv) if delivered by email, upon receipt, and will be delivered and addressed as follows:

 

(a) If to the Company, to

 

RumbleOn, Inc.

901 W. Walnut Hill Lane

Irving, Texas 75038

Attention: Michael Francis, General Counsel

Email: Michael Francis ([email protected])

 

with a copy to (which shall not constitute notice):

 

Akerman LLP

The Main Las Olas

201 East Las Olas Boulevard

Suite 1800

Fort Lauderdale, FL 33301

Attention: Christina Russo

Email: Christina Russo ([email protected])

 

 

(b) If to the Holder, to

 

[       ]

 

with a copy to (which shall not constitute notice):

 

[      ]

 

The Company shall give written notice to the Holder (i) reasonably promptly following any adjustment of the Exercise Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least ten (10) days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the shares of Class B Common Stock, (B) with respect to any grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Class B Common Stock or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation; provided, that in each case, such information shall be made known to the public prior to or in conjunction with such notice being provided to the Holder; and provided, further, that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporation action required to be specified in such notice. Upon receipt or delivery by the Company of any notice in accordance with the terms of this Warrant, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, nonpublic information relating to the Company or its subsidiaries, the Company shall contemporaneously with any such receipt or delivery publicly disclose such material, nonpublic information on a Current Report on Form 8-K or otherwise in accordance with applicable laws. In the event that the Company believes that a notice contains material, nonpublic information relating to the Company or its subsidiaries, the Company so shall indicate to such Holder contemporaneously with delivery of such notice, and in the absence of any such indication, the Holder shall be allowed to presume that all matters relating to such notice do not constitute material, nonpublic information relating to the Company or its subsidiaries.

 

12. NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by amendment of its Articles or Bylaws, each as currently in effect, or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times in good faith carry out all the provisions of this Warrant and take all action as may be required to protect the rights of the Holder. Without limiting the generality of the foregoing, the Company (i) shall not increase the par value of any shares of Class B Common Stock receivable upon the exercise of this Warrant above the Exercise Price then in effect, and (ii) shall use all reasonable efforts to take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Class B Common Stock upon the exercise of this Warrant.

 

13. AMENDMENT AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant may not be modified, amended or waived except pursuant to an instrument in writing signed by the Company and the Holder. The Company may not take any action herein prohibited, or omit to perform any act herein required to be performed by it without the written consent of the Holder and the Holder may not take any action herein prohibited, or omit to perform any act herein required to be performed by it without the written consent of the Company.

 

14. GOVERNING LAW; WAIVER OF JURY TRIAL. This Warrant shall be governed by and construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Warrant shall be governed by, the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. THE COMPANY AND THE HOLDER EACH HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.

 

 

15. CONSTRUCTION; HEADINGS. This Warrant shall be deemed to be jointly drafted by the Company and the Holder and shall not be construed against any person as the drafter hereof. The headings of this Warrant are for convenience of reference and shall not form part of, or affect the interpretation of, this Warrant.

 

16. DISPUTE RESOLUTION. In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company shall submit the disputed determinations or arithmetic calculations via email within two (2) Trading Days of receipt of the Exercise Notice giving rise to such dispute, as the case may be, to the Holder. If the Holder and the Company are unable to agree upon such determination or calculation of the Exercise Price or the Warrant Shares within five (5) Trading Days after such disputed determination or arithmetic calculation is submitted to the Holder, then the Company shall, within two (2) Trading Days, submit via email (a) the disputed determination of the Exercise Price to an independent, reputable investment bank selected by the Company and approved by the Holder or (b) the disputed arithmetic calculation of the Warrant Shares to the Company’s independent, outside accountant. The Company shall cause the investment bank or the accountant, as the case may be, to perform the determinations or calculations and notify the Company and the Holder of the results no later than ten (10) Trading Days after the date that such investment bank or accountant, as the case may be, receives the disputed determinations or calculations. Such investment bank’s or accountant’s determination or calculation, as the case may be, shall be binding upon all parties absent demonstrable error. The expenses of the investment bank and accountant will be borne by the Company unless the investment bank or accountant determines that the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares by the Company was correct, in which case the expenses of the investment bank and accountant will be borne by the Holder.

 

17. REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative and in addition to all other remedies available under this Warrant, at law or in equity (including a decree of specific performance and/or other injunctive relief). The Company acknowledges that a breach by it of its obligations hereunder may cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to seek an injunction restraining any breach, specific performance and any other relief that may be available from a court of competent jurisdiction, and in any case no bond or other security shall be required in connection therewith.

 

18. CERTAIN DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:

 

(a) “Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

 

(b) “Articles” means the Company’s Articles of Incorporation, as may be amended from time to time.

 

(c) “Bloomberg” means Bloomberg Financial Markets.

 

(d) “Board of Directors” means the Board of Directors of the Company.

 

(e) “Business Day” means a day, other than a Saturday or Sunday, on which banks in New York are open for the general transaction of business.

 

(f) “Bylaws” means the Bylaws of the Company, as amended and may be further amended from time to time.

 

 

(g) “Class A Common Stock” means the Company’s shares of Class A Common Stock, $0.001 par value per share.

 

(h) “Class B Common Stock” means (i) the Company’s shares of Class B Common Stock, $0.001 par value per share, and (ii) any share capital into which such Class B Common Stock shall have been changed or any share capital resulting from a reclassification of such Class B Common Stock.

 

(i) “Close of Business” means 4:00pm New York City time.

 

(j) “Code” means the U.S. Internal Revenue Code of 1986, as amended (including any successor statute).

 

(k) “Common Stock” means the common stock of the Company, as defined in the Articles, and including the Class A Common Stock and the Class B Common Stock.

 

(l) “Convertible Securities” means any stock or securities directly or indirectly convertible into or exercisable or exchangeable for shares of Class B Common Stock except for such stock or securities issued as awards under the Company’s equity incentive plan.

 

(m) “Effective Price” means the amount paid or payable to acquire shares of Class B Common Stock (or in the case of Convertible Securities, the amount paid or payable to acquire the Convertible Security, if any, plus the exercise price for the underlying Class B Common Stock).

 

(n) “Eligible Market” means the Principal Market, The New York Stock Exchange, Inc., the NYSE American LLC, The Nasdaq Stock Market, or the OTC Bulletin Board.

 

(o) “Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

(p) “Expiration Date” means the eighteen (18) month anniversary of the Issuance Date; provided, that in the event that after such date, the SEC issues any stop order suspending the effectiveness of the Registration Statement, the Registration Statement is suspended by the Company or ceases to remain continuously effective as to all Warrant Shares for which it is required to be effective, then the Expiration Date shall be extended by a number of Trading Days equal to the number of Trading Days that occur during the period that such stop order by the SEC has not been terminated or the Registration Statement is suspended by the Company or ceases to remain effective.

 

(q) “Fair Market Value” means, as of the applicable date of determination, the fair market value of a dividend or distribution as determined reasonably and in good faith by the Board of Directors and the Holder; provided, that if the Board of Directors and the Holder cannot mutually agree on a determination of Fair Market Value within 30 days of the Ex-Date, the Fair Market Value shall be determined by an independent appraiser selected by the Board of Directors and reasonably satisfactory to the Holder (the “Appraiser”). The determination of Fair Market Value by the Appraiser shall be final and binding upon the parties hereto, absent fraud or manifest error, and the Company shall pay the fees and expenses of the Appraiser.

 

 

(r)  “Fundamental Transaction” means at any time after the Issuance Date and prior to the Expiration Date (A) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Subject Entities, or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its shares of Class B Common Stock be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of at least either (x) 50% of the outstanding shares of Class B Common Stock, (y) 50% of the outstanding shares of Class B Common Stock calculated as if any shares of Class B Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of shares of Class B Common Stock such that all Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least 50% of the outstanding shares of Class B Common Stock, or (iv) consummate a stock purchase or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities, individually or in the aggregate, acquire, either (x) at least 50% of the outstanding shares of Class B Common Stock, (y) at least 50% of the outstanding shares of Class B Common Stock calculated as if any shares of Class B Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such stock purchase or other business combination were not outstanding; or (z) such number of shares of Class B Common Stock such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least 50% of the outstanding shares of Class B Common Stock, or (v) reorganize, recapitalize or reclassify its shares of Class B Common Stock, (B) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding shares of Class B Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding shares of Class B Common Stock, (y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding shares of Class B Common Stock not held by all such Subject Entities as of the date of this Warrant calculated as if any shares of Class B Common Stock held by all such Subject Entities were not outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Class B Common Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other stockholders of the Company to surrender their Class B Common Stock without approval of the stockholders of the Company, or (C) directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance by the Company of or the entering by the Company into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction.

 

(s) “Group” means a “group” as that term is used in Section 13(d) of the Exchange Act and as defined in Rule 13d-5 thereunder.

 

(t) “Merger Agreement” means that certain Plan of Merger and Equity Purchase Agreement, dated as of March 12, 2021, by and among the Company, the Company, RO Merger Sub I, Inc., an Arizona corporation and wholly owned subsidiary of the Company, RO Merger Sub II, Inc., an Arizona corporation and wholly owned subsidiary of the Company, RO Merger Sub III, Inc., an Arizona corporation and wholly owned subsidiary of the Company, RO Merger Sub IV, Inc., an Arizona corporation and wholly owned subsidiary of the Company, C&W Motors, Inc., an Arizona corporation, Metro Motorcycle, Inc., an Arizona corporation, Tucson Motorcycles, Inc., an Arizona corporation, and Tucson Motorsports, Inc., an Arizona corporation, William Coulter, an individual, Mark Tkach, an individual, and each other Person (as defined therein) who owns an Equity Interest (as defined therein) in any Transferred Entity (as defined therein) and executes a Seller Joinder (as defined therein), and Tkach, as the representative of the Sellers (as defined therein).

 

(u) “Merger Closing” means the Closing, as such term is defined in the Merger Agreement.

 

(v) “Options” means any rights, warrants or options to subscribe for or purchase shares of Class B Common Stock or Convertible Securities.

 

(w) “Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.

 

 

(x) “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and a government or any department or agency thereof.

 

(y) “Principal Market” means the NASDAQ Capital Market.

 

(z) “Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of Class B Common Stock have the right to receive any cash, securities or other property or in which Class B Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of Class B Common Stock entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).

 

(aa) “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary trading market with respect to the Class B Common Stock as in effect on the date of delivery of the Exercise Notice.

 

(bb) “Subject Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.

 

(cc) “Subsidiary” means, as to any Person, any corporation, partnership, limited liability company or other organization, whether incorporated or unincorporated, of which at least a majority of the securities or other interests having by their terms voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly beneficially owned or controlled by such party or by any one or more of its subsidiaries, or by such party and one or more of its subsidiaries.

 

(dd) “Successor Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from or surviving any Fundamental Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such Fundamental Transaction shall have been entered into.

 

(ee) “Trading Day” means any day on which the Class B Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Class B Common Stock, then on the principal securities exchange or securities market on which the Class B Common Stock is then traded; provided that “Trading Day” shall not include any day that the Class B Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York Time).

 

(ff) “Transfer Agent” means West Coast Stock Transfer, Inc., or any other successor Person appointed to act in the capacity of transfer agent of the Company.

 

(gg) “Treasury Regulations” means the final or temporary regulations issued by the United States Department of Treasury pursuant to its authority under the Code, and any successor regulations.

 

(hh) “Warrant Shares” means [    ] shares of Class B Common Stock, subject to adjustments as set forth in Section 3.

 

(ii) “Weighted Average Price” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market during the period beginning at 9:30:01 a.m., New York City time, and ending at 4:00:00 p.m., New York City time, as reported by Bloomberg through its “Volume at Price” function or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York City time, and ending at 4:00:00 p.m., New York City time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the OTC Pink Market maintained by OTC Markets Group Inc. If the Weighted Average Price cannot be calculated for such security on such date on any of the foregoing bases, the Weighted Average Price of such security on such date shall be the Fair Market Value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the Fair Market Value of such security, then such dispute shall be resolved pursuant to Section 14 with the term “Weighted Average Price” being substituted for the term “Exercise Price.” All such determinations shall be appropriately adjusted for any share dividend, share split or other similar transaction during such period.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the Company has caused this Warrant to Purchase Class B Common Stock to be duly executed as of the Issuance Date set out above.

 

	RUMBLEON, INC.
	By:
	Name:	Marshall Chesrown
	Title:	Chief Executive Officer

 

Accepted as of the date first written above:
[    ]
By:
Name:
Title:

 

[Signature Page to Class B Common Warrant]

 

 

EXHIBIT A

 

EXERCISE NOTICE

 

TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT TO PURCHASE CLASS B COMMON STOCK

 

RUMBLEON, INC.

 

The undersigned holder hereby exercises the right to purchase [_________] shares of Class B Common Stock (“Warrant Shares”) of RumbleOn, Inc., a Nevada corporation (the “Company”), evidenced by the attached Warrant to Purchase Class B Common Stock (the “Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.

 

1. Exercise Price. The Holder intends that payment of the Exercise Price shall be made as (check one):

 

☐

Cash Exercise under Section 1(a).

 

☐

Cashless Exercise under Section 1(d).

 

2.  Cash Exercise. If the Holder has elected a Cash Exercise, the Holder shall pay the sum of $[_________] to the Company in accordance with the terms of the Warrant.

 

3.  Delivery of Warrant Shares. The Company shall deliver to the holder Warrant Shares in accordance with the terms of the Warrant. If the shares are to be delivered electronically, please complete the Depositary information below.

 

DATED:                     

 

	(Signature must conform in all respects to name of the Holder as specified on the face of the Warrant)
	Registered Holder
	Address: _________________________________
	If shares are to be delivered electronically:
	Broker name:
	Broker Depositary account #:
	Account at Broker shares are to be delivered to:

 

 

ACKNOWLEDGMENT

 

The Company hereby acknowledges this Exercise Notice.

 

	RUMBLEON, INC.
	By:
	Name:
	Title:

 

 

 

 

Exhibit 10.1

 

EXECUTION VERSION

 

 

TERM LOAN CREDIT AGREEMENT

 

Dated as of August 31, 2021

 

among

 

RUMBLEON, INC.,
as the Borrower,

 

OAKTREE FUND ADMINISTRATION, LLC,
as Administrative Agent and Collateral Agent,

 

THE LENDERS PARTY HERETO,

 

and

 

OAKTREE CAPITAL MANAGEMENT, L.P.
as Sole Lead Arranger

 

 

 

Table of Contents

 

ARTICLE I

Definitions and Accounting Terms

 

		Page
Section 1.01	Defined Terms	2
Section 1.02	Other Interpretive Provisions	38
Section 1.03	Accounting Terms	38
Section 1.04	Rounding	39
Section 1.05	References to Agreements, Laws, Etc.	39
Section 1.06	Times of Day	39
Section 1.07	Timing of Payment or Performance	39
Section 1.08	Currency Equivalents Generally	39
Section 1.09	Certain Calculations and Tests	39
Section 1.10	Divisions	39
Section 1.11	Rates; LIBOR Notification	40

 

ARTICLE II

The Commitments and Credit Extensions

 

Section 2.01	The Loans	40
Section 2.02	Borrowings, Conversions and Continuations of Loans	40
Section 2.03	Prepayments	41
Section 2.04	Termination or Reduction of Commitments	45
Section 2.05	Repayment of Loans	46
Section 2.06	Interest	46
Section 2.07	Fees	46
Section 2.08	Computation of Interest and Fees	46
Section 2.09	Evidence of Indebtedness	46
Section 2.10	Payments Generally	47
Section 2.11	Sharing of Payments	48
Section 2.12	Incremental Credit Extensions	48
Section 2.13	Defaulting Lenders	49

 

ARTICLE III

Taxes, Increased Costs Protection and Illegality

 

Section 3.01	Taxes	50
Section 3.02	Inability to Determine Rates; Alternative Rate of Interest	52
Section 3.03	Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans	53
Section 3.04	Funding Losses	54
Section 3.05	Matters Applicable to All Requests for Compensation	54
Section 3.06	Replacement of Lenders under Certain Circumstances	55
Section 3.07	Illegality	55
Section 3.08	Survival	56

 

 

ARTICLE IV

Conditions Precedent to Credit Extensions

 

Section 4.01	Conditions to Closing Date	56
Section 4.02	Conditions to Subsequent Credit Extensions	57

 

ARTICLE V

Representations and Warranties

 

Section 5.01	Existence, Qualification and Power; Compliance with Laws	58
Section 5.02	Authorization; No Contravention	58
Section 5.03	Governmental Authorization; Other Consents	59
Section 5.04	Binding Effect	59
Section 5.05	Financial Statements; No Material Adverse Effect	59
Section 5.06	Litigation	59
Section 5.07	Ownership of Property; Liens	59
Section 5.08	Environmental Matters	59
Section 5.09	Taxes	60
Section 5.10	Compliance with ERISA	60
Section 5.11	Subsidiaries; Equity Interests	60
Section 5.12	Margin Regulations; Investment Company Act	60
Section 5.13	Disclosure	61
Section 5.14	Intellectual Property; Licenses, Etc.	61
Section 5.15	Solvency	61
Section 5.16	Collateral Documents	61
Section 5.17	Use of Proceeds	61
Section 5.18	Anti-Money Laundering/International Trade Law Compliance	61
Section 5.19	Labor Matters	62

 

ARTICLE VI

Affirmative Covenants

 

Section 6.01	Financial Statements	62
Section 6.02	Certificates; Other Information	62
Section 6.03	Notices	63
Section 6.04	Maintenance of Existence	64
Section 6.05	Maintenance of Properties	64
Section 6.06	Maintenance of Insurance	64
Section 6.07	Compliance with Laws	64
Section 6.08	Books and Records	64
Section 6.09	Inspection Rights	64
Section 6.10	Covenant to Guarantee Obligations and Give Security	65
Section 6.11	Use of Proceeds	66
Section 6.12	Further Assurances and Post-Closing Covenants	66
Section 6.13	Designation of Subsidiaries	66
Section 6.14	Payment of Taxes	67
Section 6.15	Nature of Business	67
Section 6.16	Deposit Accounts, Commodity Accounts and Securities Accounts; Location and Proceeds of Loans	67
Section 6.17	Maintenance of Ratings	67
Section 6.18	Quarterly Conference Calls	67

 

 

 

ARTICLE VII

Negative Covenants

 

Section 7.01	Liens	68
Section 7.02	Investments	70
Section 7.03	Indebtedness	73
Section 7.04	Fundamental Changes	75
Section 7.05	Dispositions	76
Section 7.06	Restricted Payments	77
Section 7.07	Transactions with Affiliates	78
Section 7.08	Prepayments, Etc., of Indebtedness	78
Section 7.09	Negative Pledge and Subsidiary Distributions	79
Section 7.10	Financial Covenants	80
Section 7.11	Anti-Terrorism Laws	80

 

ARTICLE VIII

Events of Default and Remedies

 

Section 8.01	Events of Default	80
Section 8.02	Remedies Upon Event of Default	82
Section 8.03	Exclusion of Immaterial Subsidiaries	83
Section 8.04	Application of Funds	83

 

ARTICLE IX

Administrative Agent and Other Agents

 

Section 9.01	Appointment and Authorization of Agents	83
Section 9.02	Delegation of Duties	84
Section 9.03	Liability of Agents	84
Section 9.04	Reliance by Agents	85
Section 9.05	Notice of Default	85
Section 9.06	Credit Decision; Disclosure of Information by Agents	85
Section 9.07	Indemnification of Agents	86
Section 9.08	Agents in their Individual Capacities	86
Section 9.09	Successor Agents	86
Section 9.10	Administrative Agent May File Proofs of Claim	87
Section 9.11	Collateral and Guaranty Matters	88
Section 9.12	Other Agents; Arrangers and Managers	89
Section 9.13	Appointment of Supplemental Administrative Agents	89
Section 9.14	Withholding Tax	89
Section 9.15	Erroneous Payments	90

 

 

ARTICLE X

Miscellaneous

 

Section 10.01	Amendments, Etc.	91
Section 10.02	Notices and Other Communications; Facsimile Copies	92
Section 10.03	No Waiver; Cumulative Remedies	93
Section 10.04	Attorney Costs and Expenses	94
Section 10.05	Indemnification by the Borrower	94
Section 10.06	Payments Set Aside	95
Section 10.07	Successors and Assigns	95
Section 10.08	Confidentiality	98
Section 10.09	Setoff	99
Section 10.10	Counterparts	99
Section 10.11	Integration	99
Section 10.12	Survival of Representations and Warranties	99
Section 10.13	Severability	99
Section 10.14	GOVERNING LAW, JURISDICTION, SERVICE OF PROCESS	99
Section 10.15	WAIVER OF RIGHT TO TRIAL BY JURY	100
Section 10.16	Binding Effect	100
Section 10.17	Judgment Currency	100
Section 10.18	Lender Action	101
Section 10.19	USA PATRIOT Act	101
Section 10.20	Intercreditor Agreements	101
Section 10.21	Obligations Absolute	101
Section 10.22	No Advisory or Fiduciary Responsibility	101
Section 10.23	Acknowledgment and Consent to Bail-In of EEA Financial Institutions	102
Section 10.24	Electronic Execution of Assignments and Certain Other Documents	102

 

SCHEDULES

 

1.01A	—	Collateral Documents
1.01B	—	Unrestricted Subsidiaries
1.01C	—	Guarantors
1.01D	—	Material Real Properties
2.01	—	Commitments
5.06	—	Litigation
5.11	—	Subsidiaries and Other Equity Investments
6.12	—	Post-Closing Covenants
7.01(b)	—	Existing Liens
7.02	—	Existing Investments
7.03(b)	—	Surviving Indebtedness
7.07	—	Transactions with Affiliates
10.02	—	Administrative Agent’s Office, Certain Addresses for Notices

 

 

EXHIBITS

 

Form of

 

A	—	Committed Loan Notice
B	—	Term Note
C	—	Compliance Certificate
D	—	Assignment and Assumption
E	—	Guaranty
F	—	Security Agreement
G	—	Discounted Prepayment Option Notice
H	—	Lender Participation Notice
I	—	Discounted Voluntary Prepayment Notice
J	—	United States Tax Compliance Certificate
K	—	Solvency Certificate
L-1	—	Pari Passu Intercreditor Agreement
L-2	—	Floor Plan Intercreditor Agreement

 

 

TERM LOAN CREDIT AGREEMENT

 

This TERM LOAN CREDIT AGREEMENT (this “Agreement”) is entered into as of August 31, 2021, among RUMBLEON, INC., a Nevada corporation (the “Borrower”), OAKTREE FUND ADMINISTRATION, LLC, as Administrative Agent and Collateral Agent, and each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”).

 

PRELIMINARY STATEMENTS

 

1. The Borrower intends to indirectly acquire (the “Acquisition”) all of the outstanding Equity Interests of the Transferred Entities and of C&W Motors, Inc., an Arizona corporation (“C&W”), Metro Motorcycle, Inc., an Arizona corporation (“Metro”), Tucson Motorcycles, Inc., an Arizona corporation (“Tucson Motorcycles”), CMG Powersports, Inc., a Delaware corporation (“CMG Powersports”) and Tucson Motorsports, Inc., an Arizona corporation (“Tucson Motorsports” and, together with C&W, Metro, CMG Powersports and Tucson Motorcycles, each a “Merged Entity” and collectively, the “Merged Entities”). On or before the Closing Date, to effect the Acquisition, (a) the Equity Contribution (as this and other capitalized terms used in these Preliminary Statements are defined in Section 1.01 below) will occur and (b) the Borrower will consummate the transactions contemplated by the Plan of Merger and Equity Purchase Agreement, dated as of March 12, 2021 as amended by that certain Joinder and First Amendment to Plan of Merger and Equity Purchase Agreement dated June 17, 2021 (as it may be further amended, the “Acquisition Agreement”), by and among the Borrower, the Merged Entities, RO Merger Sub I, Inc., an Arizona corporation (“Merger Sub I”), RO Merger Sub II, Inc., an Arizona corporation (“Merger Sub II”), RO Merger Sub III, Inc., an Arizona corporation (“Merger Sub III”), RO Merger Sub IV, Inc., an Arizona corporation (“Merger Sub IV”), RO Merger Sub V, Inc., a Delaware corporation (“Merger Sub V” and, together with Merger Sub I, Merger Sub II, Merger Sub III and Merger Sub IV, each a “Merger Sub” and collectively, the “Merger Subs”), the sellers party thereto (the “Sellers”) and Mark Tkach, as representative of the Sellers, and concurrently with the consummation of the transactions contemplated under the Acquisition Agreement, (i) Merger Sub I will merge with and into C&W, with C&W as the surviving corporation; (ii) Merger Sub II will merge with and into Metro, with Metro as the surviving corporation; (iii) Merger Sub III will merge with and into Tucson Motorcycles, with Tucson Motorcycles as the surviving corporation, (iv) Merger Sub IV will merge with and into Tucson Motorsports, with Tucson Motorsports as the surviving corporation and (v) Merger Sub V will merge with and into CMG Powersports, with CMG Powersports as the surviving corporation and (vi) the Borrower will purchase all of the outstanding Equity Interests in the Transferred Entities from the Sellers.

 

2. The Borrower has requested (a) that immediately prior to the consummation of the Acquisition, the Lenders make available to the Borrower the Initial Term Commitments and Initial Term Loans, and (b) that after the Closing Date, the Lenders make available to the Borrower the Delayed Draw Term Commitments and the Delayed Draw Term Loans from time to time prior to the Delayed Draw Term Loan Commitment Termination Date, in each case of clause (a) and (b), subject to the terms and conditions set forth herein including the use of proceeds set forth in Section 6.11.

 

3. The Lenders have indicated their willingness to lend on the terms and subject to the conditions set forth herein.

 

4. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

 

ARTICLE I

Definitions and Accounting Terms

 

Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

 

“Acceptable Discount” has the meaning specified in Section 2.03(d)(iii).

 

“Acceptable Intercreditor Agreement” means an intercreditor agreement that is (i) either in substantially the form of Exhibit L-1 or L-2, as applicable, or (ii) reasonably agreed between the Administrative Agent and the Borrower and, if entered into more than sixty (60) days after the date hereof, has not been objected to by the applicable Required Lenders within five (5) Business Days of having been posted (and any such failure to object within such time will be deemed an acceptable of such intercreditor agreement).

 

“Acceptance Date” has the meaning specified in Section 2.03(d)(ii).

 

“Accounting Changes” has the meaning specified in Section 1.03(c).

 

“Acquired EBITDA” means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary, as applicable, all as determined on a consolidated basis for such Acquired Entity or Business or Converted Restricted Subsidiary, as applicable.

 

“Acquired Entity or Business” has the meaning specified in the definition of the term “Consolidated EBITDA.”

 

“Acquisition” has the meaning specified in the Preliminary Statements to this Agreement.

 

“Acquisition Agreement” has the meaning specified in the Preliminary Statements to this Agreement.

 

“Additional Lender” has the meaning specified in Section 2.12(c).

 

“Administrative Agent” means, subject to Section 9.13, Oaktree Fund Administration, LLC (and any Affiliates selected by Oaktree to act as administrative agent for any of the facilities provided hereunder), in its capacity as administrative agent under the Loan Documents, or any successor administrative agent appointed in accordance with Section 9.09.

 

“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

 

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. Notwithstanding the foregoing, no Lender listed on Schedule 2.01 (nor any of their respective Affiliates a majority of the voting Equity Interests of which are owned directly or indirectly by a parent company of any such Lender) shall be deemed to be an Affiliate of the Borrower or any Restricted Subsidiary.

 

“Affiliated Debt Fund” means an Affiliated Lender that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business and with respect to which the Borrower or any of its Subsidiaries do not, directly or indirectly, possess the power to direct or cause the direction of the investment policies of such entity.

 

“Affiliated Lender” means any Affiliate of Borrower that owns at least ten percent (10%) of the outstanding Equity Interests of the Borrower or its Subsidiaries (including, without limitation, the Borrower and its Subsidiaries), but excluding (x) Oaktree, (y) Deutsche Bank AG New York Branch or (z) Affiliates and any funds advised or managed by any of the foregoing.

 

 

“Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

 

“Agents” means, collectively, the Administrative Agent, the Collateral Agent, and the Supplemental Administrative Agents (if any).

 

“Aggregate Commitments” means the Term Commitments of all the Lenders.

 

“Agreement” has the meaning specified in the introductory paragraph hereof.

 

“Agreement Currency” has the meaning specified in Section 10.17.

 

“Anti-Terrorism Laws” means Laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, and any regulation, order, or directive promulgated, issued or enforced pursuant to such Laws, all as amended, supplemented or replaced from time to time.

 

“Applicable Discount” has the meaning specified in Section 2.03(d)(iii).

 

“Applicable Lending Office” means for any Lender, such Lender’s office, branch or affiliate designated for Eurocurrency Rate Loans of the applicable currency or Base Rate Loans, as applicable, as notified to the Administrative Agent, any of which offices may be changed by such Lender.

 

“Applicable Percentage” means, at any time (a) with respect to any Lender with a Term Commitment of any Class, the percentage equal to a fraction the numerator of which is the amount of such Lender’s Term Commitment of such Class at such time and the denominator of which is the aggregate amount of all Term Commitments of such Class of all Lenders and (b) with respect to the Loans of any Class, a percentage equal to a fraction the numerator of which is such Lender’s Outstanding Amount of the Loans of such Class and the denominator of which is the aggregate Outstanding Amount of all Loans of such Class.

 

“Applicable Rate” means a percentage per annum equal to: (a) for Eurocurrency Rate Loans, 8.25% and (b) for Base Rate Loans, 7.25%. Notwithstanding the foregoing, the Applicable Rate in respect of any Incremental Term Loans shall be the applicable percentages per annum set forth in the relevant Incremental Facility Amendment.

 

“Appropriate Lender” means, at any time with respect to Loans of any Class, the Lenders of such Class.

 

“Approved Foreign Bank” has the meaning specified in the definition of “Cash Equivalents.”

 

“Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.

 

“Asset Percentage” has the meaning specified in Section 2.03(b)(ii).

 

“Assignees” has the meaning specified in Section 10.07(b).

 

“Assignment and Assumption” means (a) an Assignment and Assumption substantially in the form of Exhibit D or any other form (including electronic documentation generated by an electronic platform) approved by the Administrative Agent.

 

“Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external legal counsel.

 

“Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

 

“Audited Financial Statements” means (i) the audited consolidated balance sheet of the Borrower and its Subsidiaries and the audited combined balance sheet of the Target Companies as of the last day of the most recent fiscal year and (ii) the related audited consolidated or combined, as applicable, statements of income and cash flows of the Borrower and its Subsidiaries and the Target Companies for the most recent fiscal year.

 

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of Section 3.02.

 

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

 

“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, or (b) in relation to any state other state than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-Down and Conversion Powers contained in that law or regulation.

 

“Bankruptcy Code” means Title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.

 

“Bankruptcy Event” means, with respect to any Person, such Person or its parent entity becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Body or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Body or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person or its parent entity.

 

“Base Rate” means, a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of: (a) the Prime Rate on such day; (b) ½ of 1.00% per annum above the Federal Funds Rate; and (c) the sum of the Daily LIBOR Rate in effect on such day plus one percent (1.0%), so long as a Daily LIBOR Rate is offered, ascertainable and not unlawful; provided, however, that if the Base Rate determined as provided above would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. Any change in the Base Rate for Dollar-denominated Loans due to a change in the Prime Rate, the Federal Funds Rate or the Daily LIBOR Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Rate or the Daily LIBOR Rate, respectively.

 

“Base Rate Loan” means a Loan that bears interest at a rate based on the Base Rate.

 

“Benchmark” means, initially, LIBOR; provided that, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to LIBOR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (c) of Section 3.02.

 

“Benchmark Replacement” means for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date: (1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment; (2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment; (3) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided, that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion. If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

 

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement: (1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent: (a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor; (b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and (2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar denominated syndicated credit facilities at such time; provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.

 

 

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides (in consultation with the Borrower) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent and the Borrower decide is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark: (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; or (3) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders. For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark: (1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative and such circumstances are unlikely to be temporary. For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

 

“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.02 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.02.

 

“Borrower Materials” has the meaning specified in Section 6.02.

 

“Borrower” has the meaning specified in the introductory paragraph to this Agreement.

 

“Borrowing” means Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Eurocurrency Rate Loans, as to which a single Interest Period is in effect.

 

“Borrowing Minimum” means $1,000,000.

 

 

“Borrowing Multiple” means $500,000.

 

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that when used in connection with a Eurocurrency Rate Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.

 

“Call Premium” means any Make-Whole Amount or Repayment Fee.

 

“Called Principal” means, with respect to any Loan, the amount of principal of such Loan that is to be repaid pursuant to Section 2.03 or has become or is declared to be immediately due and payable pursuant to Section 8.02, as the context requires.

 

“Capital Expenditures” means, for any period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash or accrued as liabilities and including Capitalized Research and Development Costs and Capitalized Software Expenditures) by the Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment reflected in the consolidated balance sheet of the Borrower and its Restricted Subsidiaries and (b) Capitalized Lease Obligations incurred by the Borrower and its Restricted Subsidiaries during such period.

 

“Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.

 

“Capitalized Leases” means all leases that are required to be, in accordance with GAAP, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance with GAAP; provided further that all obligations of the Borrower and its Restricted Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP as in effect on the Closing Date (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease) for purposes of this Agreement regardless of any change in GAAP following the Closing Date that would otherwise require such obligation to be recharacterized as a Capitalized Lease; provided, that Capitalized Leases shall not include leases for real estate.

 

“Capitalized Research and Development Costs” means research and development costs that are required to be, in accordance with GAAP, capitalized.

 

“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.

 

“CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136, as amended.

 

“Cash Equivalents” means any of the following types of Investments, to the extent owned by the Borrower or any Restricted Subsidiary:

 

(1) Dollars;

 

(2) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the foregoing the securities of which are guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition;

 

(3) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, with any domestic or foreign commercial bank having capital and surplus of not less than $500,000,000 in the case of U.S. banks and $100,000,000 (or the Dollar equivalent as of the date of determination) in the case of non-U.S. banks;

 

(4) repurchase obligations for underlying securities of the types described in clauses (2), (3) and (7) of this definition entered into with any financial institution meeting the qualifications specified in clause (3) above;

 

(5) commercial paper rated at least “P-2” by Moody’s or at least “A-2” by S&P, and in each case maturing within 24 months after the date of creation thereof and Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s, with maturities of 24 months or less from the date of acquisition;

 

 

(6) marketable short-term money market and similar securities having a rating of at least “P-2” or “A-2” from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Borrower) and in each case maturing within 24 months after the date of creation or acquisition thereof;

 

(7) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from Moody’s or S&P with maturities of 24 months or less from the date of acquisition;

 

(8) readily marketable direct obligations issued by any foreign government or any political subdivision or public instrumentality thereof, in each case having an Investment Grade Rating from Moody’s or S&P with maturities of 24 months or less from the date of acquisition;

 

(9) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated within the top three ratings category by S&P or Moody’s;

 

(10) with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of investment therein, (ii) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-1” or the equivalent thereof or from Moody’s is at least “P-1” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 270 days from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;

 

(11) Cash Equivalents of the types described in clauses (1) through (10) above denominated in Dollars or, solely to the extent held in the ordinary course of business and not for speculative purposes, any currency in which the Borrower and/or its Restricted Subsidiaries regularly conducts business; and

 

(12) investment funds investing at least 90% of their assets in Cash Equivalents of the types described in clauses (1) through (11) above.

 

“Cash Management Bank” means financial institution providing treasury, depository, credit or debit card, purchasing card, and/or cash management services or automated clearing house transactions to the Borrower or any Restricted Subsidiary or conducting any automated clearing house transfers of funds.

 

“Cash Management Obligations” means obligations owed by the Borrower or any Restricted Subsidiary to any Cash Management Bank in respect of any overdraft and related liabilities arising from treasury, depository, credit or debit card, purchasing card, or cash management services or any automated clearing house transfers of funds.

 

“Casualty Event” means any event that gives rise to the receipt by the Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.

 

“CFC” means any Foreign Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.

 

 

“Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any applicable Law; (b) any change in any applicable Law or in the administration, implementation, interpretation or application thereof by any Governmental Body; or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Body; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or directives thereunder or issued in connection therewith (whether or not having the force of applicable Law) and (y) all requests, rules, regulations, guidelines, interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities (whether or not having the force of law), in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law regardless of the date enacted, adopted, issued, promulgated or implemented.

 

“Change of Control” means the occurrence after the Equity Contribution and Closing Date of either of the following events: (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than a Permitted Holder or Oaktree and its Affiliates, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than the greater of (x) 40.0% or more of the capital stock of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right) (the “Voting Stock”) and (y) the percentage of Voting Stock owned, directly or indirectly, beneficially by the Permitted Holders and Oaktree and its Affiliates, or (b) during any period of 24 consecutive months (the first such period commencing two (2) months after the Closing Date), a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election, appointment or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election, appointment or nomination at least a majority of that board or equivalent governing body or (iii) whose election, appointment or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election, appointment or nomination at least a majority of that board or equivalent governing body.

 

“Class” means (a) when used with respect to Lenders, refers to whether such Lenders hold a particular Class of Term Commitments or Loans, (b) when used with respect to Term Commitments, refers to whether such Term Commitments are Initial Term Commitments, Delayed Draw Term Commitments, or commitments in respect of any Incremental Term Loans that are designated as an additional Class of Term Loans and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Term Loans, Incremental Term Loans that are designated as an additional Class of Term Loans and any Loans made pursuant to any other Class of Term Commitments. After a Delayed Draw Funding Date, the Initial Term Loans and the Delayed Draw Term Loans that have been funded hereunder shall be treated as a single Class under this Agreement for all purposes.

 

“Closing Date” means the date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.

 

“Code” means the U.S. Internal Revenue Code of 1986, as amended.

 

“Collateral” means all the “Collateral” as defined in the Collateral Documents and all other property of whatever kind and nature pledged or charged as collateral under any Collateral Document, and shall include the Mortgaged Properties.

 

“Collateral Agent” means Oaktree Fund Administration, LLC, in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent appointed in accordance with Section 9.09.

 

“Collateral and Guarantee Requirement” means, at any time, the requirement that

 

(a) the Collateral Agent shall have received each Collateral Document required to be delivered on the Closing Date pursuant to Section 4.01(a)(iv), or thereafter pursuant to Section 6.10 or Section 6.12, duly executed by each Loan Party that is a party thereto;

 

 

(b) all Obligations shall have been unconditionally guaranteed (the “Guarantees”), jointly and severally, by each Restricted Subsidiary that is a Material Subsidiary (other than the Excluded Subsidiaries and any other Subsidiary that the Borrower and Administrative Agent so agree) including as of the Closing Date those that are listed on Schedule 1.01C hereto (each, a “Guarantor”);

 

(c) the Obligations and the Guarantees shall have been secured pursuant to the Security Agreements or other applicable Collateral Document by (i) a first-priority security interest in all Equity Interests (other than Excluded Equity) held directly by the Borrower or any Subsidiary Guarantor in any Subsidiary, in each case, subject to (x) those Liens permitted under Sections 7.01(b), (o), (v) (solely with respect to modifications, replacements, renewals or extensions of Liens permitted by Sections 7.01(b) and (o)), (z), (ee), (ff) and (gg) and (y) any nonconsensual Lien that is permitted under Section 7.01 and (ii) a second-priority security interest in and on any assets securing obligations of the Borrower or any Subsidiary Guarantor under any Floor Plan Financing (solely to the extent permitted under such facility and, with respect to perfection in any Deposit Account holding cash reserves that are required pursuant to the terms of any Floor Plan Financing, solely to the extent that such Lien is consented to by the capital provider of such Floor Plan Financing);

 

(d) except to the extent otherwise provided hereunder or under any Collateral Document, the Obligations and the Guarantees shall have been secured by a perfected security interest (other than in the case of mortgages, to the extent such security interest may be perfected by delivering certificated securities and instruments, filing personal property financing statements or other similar documentation, or making any necessary filings with the United States Patent and Trademark Office or United States Copyright Office) in, and mortgages on, substantially all tangible and intangible assets of the Borrower and each Guarantor (including, without limitation, accounts receivable, inventory, equipment, investment property, intellectual property, intercompany receivables, other general intangibles, owned (but not leased) real property and proceeds of the foregoing), in each case, with the priority required by the Collateral Documents; provided that security interests in real property shall be limited to the Mortgaged Properties;

 

(e) none of the Collateral shall be subject to any Liens other than Permitted Liens;

 

(f) the Collateral Agent shall have received (i) counterparts of a Mortgage with respect to each Material Real Property required to be delivered pursuant to Section 4.01(a)(iv) (if applicable), Section 6.10, and/or Section 6.12, as applicable, duly executed and delivered by the record owner of such property, (ii) a title insurance policy for such Mortgaged Property (or marked-up title insurance commitment having the effect of a title insurance policy) (the “Mortgage Policies”) insuring the Lien of each such Mortgage as a valid first priority Lien on the property described therein, free of any other Liens except Permitted Liens, together with such endorsements (including zoning endorsements where reasonably appropriate and available as the Collateral Agent may reasonably request and to the extent available in each applicable jurisdiction, and with respect to any such property located in a state in which a zoning endorsement in not available, a zoning compliance letter from the applicable municipality in a form reasonably acceptable to the Collateral Agent) and coinsurance and reinsurance as the Collateral Agent may reasonably request and to the extent available in each applicable jurisdiction, (iii) a Survey with respect to each Mortgaged Property, provided, however, that a Survey shall not be required to the extent that (A) an existing survey together with an “affidavit of no change” satisfactory to the Title Company is delivered to the Collateral Agent and the Title Company and (B) the Title Company removes the standard survey exception and provides reasonable and customary survey-related endorsements and other coverages in the applicable Mortgage Policy, (iv) a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Loan Party relating thereto), (v) if applicable, a copy of, or a certificate as to coverage under, and a declaration page relating to, the flood insurance policies required by Section 6.06 hereof, each of which (A) shall be endorsed or otherwise amended to name the Collateral Agent as mortgagee and loss payee, (B) shall (1) identify the addresses of each property located in a special flood hazard area, (2) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (3) provide that the insurer will give the Collateral Agent 30 days written notice of cancellation or non-renewal and (4) shall be otherwise in form and substance reasonably satisfactory to the Collateral Agent, and (vi) such existing abstracts, existing appraisals, legal opinions and other documents as the Collateral Agent may reasonably request with respect to any such Mortgaged Property, which shall be in form and substance reasonably satisfactory to the Collateral Agent.

 

The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as the Administrative Agent and the Borrower agree in writing that the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom.

 

 

The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance and surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.

 

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:

 

(A) Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in the Collateral Documents and, to the extent appropriate in the applicable jurisdiction, as agreed between the Administrative Agent and the Borrower;

 

(B) the Collateral and Guarantee Requirement shall not apply to any Excluded Property;

 

(C) no actions in any jurisdiction other than the U.S. or that are necessary to comply with the Laws of any jurisdiction other than the U.S. shall be required in order to create any security interests in assets located, titled, registered or filed outside of the U.S. or to perfect such security interests (it being understood that there shall be no security agreements, pledge agreements, or share charge (or mortgage) agreements governed under the Laws of any jurisdiction other than the U.S.); and

 

(D) general statutory limitations, financial assistance, corporate benefit, capital maintenance rules, fraudulent preference, “thin capitalization” rules, retention of title claims and similar principle may limit the ability of a Foreign Subsidiary to provide a Guarantee or Collateral or may require that the Guarantee or Collateral with respect to such Foreign Subsidiary be limited by an amount or otherwise, in each case as reasonably determined by the Borrower in consultation with the Administrative Agent.

 

“Collateral Documents” means, collectively, the Security Agreements, the Mortgages, each of the mortgages, collateral assignments, Security Agreement Supplements, security agreements, pledge agreements or other similar agreements delivered to the Collateral Agent and the Lenders pursuant to Section 4.01(a)(iv), Section 6.10 or Section 6.12 and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

 

“Committed Loan Notice” means a written notice of (a) a Term Borrowing, (b) a conversion of Loans from one Type to the other or (c) a continuation of Eurocurrency Rate Loans pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.

 

“Commodity Account” has the meaning specified in the UCC.

 

“Company Material Adverse Effect” means “Material Adverse Effect” as such term is defined in the Acquisition Agreement.

 

“Compensation Period” has the meaning specified in Section 2.10(c)(ii).

 

“Compliance Certificate” means a certificate substantially in the form of Exhibit C.

 

“Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees or costs, capitalized expenditures, customer acquisition costs and incentive payments, conversion costs and contract acquisition costs, the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and amortization of favorable or unfavorable lease assets or liabilities, of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.

 

“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:

 

(a) increased (without duplication) by the following:

 

(i) provision for Taxes based on income or profits or capital, including, without limitation, state franchise, excise and similar taxes and foreign withholding taxes of such Person paid or accrued during such period, including any penalties and interest relating to any tax examinations, deducted (and not added back) in computing Consolidated Net Income; plus

 

(ii) Consolidated Interest Expense (other than Floor Plan Interest Expense) of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus

 

(iii) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income whether before or after the Closing Date; plus

 

 

(iv) any expenses or charges (other than depreciation or amortization expense) related to any equity offering, Investment, acquisition, disposition or recapitalization permitted hereunder or the incurrence of Indebtedness permitted to be incurred hereunder (including a refinancing thereof, but excluding any expenses or charges relating to any Floor Plan Financing) (whether or not successful), including (A) such fees, expenses or charges related to the Loan Documents and (B) any amendment or other modification of the Loan Documents, in each case, deducted (and not added back) in computing Consolidated Net Income; plus

 

(v) the amount of any restructuring charge or reserve, integration cost or other business optimization expense or cost that is deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions or divestitures on or after the Closing Date (including the Transaction Expenses), and costs related to the closure and/or consolidation of facilities and to existing lines of business; provided that amounts added back pursuant to this clause (v) shall not exceed, when added to the aggregate amount of add backs made pursuant to clause (viii) of this definition of “Consolidated EBITDA”, 25% of Consolidated EBITDA for such period calculated prior to giving effect to the add-backs set forth in this clause (v); plus

 

(vi) any other non-cash charges, write-downs, expenses, losses or items reducing Consolidated Net Income for such period including any impairment charges or the impact of purchase accounting, (excluding any such non-cash charge, write-down or item to the extent it represents an accrual or reserve for a cash expenditure for a future period) or other items classified by the Borrower as special items less other non-cash items of income increasing Consolidated Net Income (excluding any such non-cash item of income to the extent it represents a receipt of cash in any future period); plus

 

(vii) the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly-owned subsidiary; plus

 

(viii) the amount of “run-rate” cost savings, operating expense reductions and synergies projected by the Borrower in good faith to result from actions taken prior to or during, or expected to be taken following such period (which cost savings, operating expense reductions or synergies shall be subject only to certification by a Responsible Officer of the Borrower and shall be calculated on a pro forma basis as though such cost savings, operating expense reductions or synergies had been realized on the first day of such period), net of the amount of actual benefits realized prior to or during such period from such actions; provided that (A) a Responsible Officer of the Borrower shall have certified to the Administrative Agent that (x) such cost savings, operating expense reductions or synergies are reasonably identifiable, reasonably attributable to the actions specified and reasonably anticipated to result from such actions and (y) such actions have been taken or are to be taken within eighteen (18) months from the date of such transaction and (B) amounts added back pursuant to this clause (viii) shall not exceed, when added to the aggregate amount of add backs made pursuant to clause (v) of this definition of “Consolidated EBITDA”, 25% of Consolidated EBITDA for such period calculated prior to giving effect to the add-backs set forth in this clause (viii); plus

 

(ix) any costs or expenses incurred by the Borrower or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds of an issuance of equity interests (other than disqualified equity interests) of the Borrower; plus

 

(x) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) below for any previous period and not added back; plus

 

(xi) any net loss included in Consolidated Net Income attributable to non-controlling interests pursuant to the application of Accounting Standards Codification Topic 810-10-45; plus

 

(xii) realized foreign exchange gains or losses resulting from the impact of foreign currency changes on the valuation of assets or liabilities on the balance sheet of the Borrower and its Restricted Subsidiaries; plus

 

(xiii) net realized losses from Swap Contracts or embedded derivatives that require similar accounting treatment and the application of Accounting Standard Codification Topic 815 and related pronouncements;

 

(b) decreased (without duplication) by the following:

 

(i) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Consolidated EBITDA in such prior period; plus

 

(ii) realized foreign exchange income or gains resulting from the impact of foreign currency changes on the valuation of assets or liabilities on the balance sheet of the Borrower and its Restricted Subsidiaries; plus

 

 

(iii) any net realized income or gains from any obligations under any Swap Contracts or embedded derivatives that require similar accounting treatment and the application of Accounting Standard Codification Topic 815 and related pronouncements; plus

 

(iv) any amount included in Consolidated Net Income of such Person for such period attributable to non-controlling interests pursuant to the application of Accounting Standards Codification Topic 810-10-45;

 

(c) increased or decreased (without duplication) by, as applicable, any adjustments resulting from the application of Accounting Standards Codification Topic 460 or any comparable regulation; and

 

(d) increased or decreased (to the extent not already included in determining Consolidated EBITDA) by any pro forma adjustment.

 

There shall be included in determining Consolidated EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person, property, business or asset acquired by the Borrower or any Restricted Subsidiary during such period (but not the Consolidated EBITDA of any related Person, property, business or assets to the extent not so acquired), including, for the avoidance of doubt, the Acquired EBITDA of the Target Companies, to the extent not subsequently sold, transferred or otherwise disposed of by the Borrower or such Restricted Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition or conversion) and (B) an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) as specified in a certificate executed by a Responsible Officer and delivered to the Lenders and the Administrative Agent. For purposes of determining the Consolidated EBITDA for any period, there shall be excluded in determining the Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or otherwise disposed of, closed or classified as discontinued operations by the Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”) and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a “Converted Unrestricted Subsidiary”), based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition).

 

Notwithstanding the foregoing, solely for the purposes of determining the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Total Leverage Ratio and/or the Consolidated Total Net Leverage Ratio for any Test Period, Consolidated EBITDA (x) shall be calculated in a certificate that is in substantially the same form as the certificate delivered to the Administrative Agent on or prior to the Closing Date and (y) for the fiscal quarters ended September 30, 2020, December 31, 2020, March 31, 2021, June 30, 2021 and September 30, 2021 shall be deemed to equal the amount on file with the Administrative Agent for each such applicable fiscal quarter.

 

“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:

 

(a) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount or premium resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Swap Contracts or other derivative investments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations,(e) net payments, if any, pursuant to interest rate obligations under any Swap Contracts with respect to Indebtedness and (f) interest expense related to Floor Plan Financings); plus

 

(b) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less

 

(c) interest income for such period.

 

 

For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

 

“Consolidated Net Income” means, with respect to any Person for any period, the net income (loss) of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis on the basis of GAAP; provided, however, that there will not be included in such Consolidated Net Income:

 

(a) any net income (loss) of any Person if such Person is not a Restricted Subsidiary, except that the Borrower’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or cash equivalents actually distributed (or, so long as such person is not (x) a joint venture with outstanding third-party Indebtedness for borrowed money or (y) an Unrestricted Subsidiary, that (as reasonably determined by a Responsible Officer of the Borrower) could have been distributed by such Person during such period to the Borrower or a Restricted Subsidiary) as a dividend or other distribution or return on investment;

 

(b) any net gain (or loss) from disposed, abandoned or discontinued operations and any net gain (or loss) on disposal of disposed, discontinued or abandoned operations;

 

(c) any net gain (or loss) realized upon the sale or other disposition of any asset (including pursuant to any sale/leaseback transaction) which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by a Responsible Officer or the board of directors of the Borrower);

 

(d) any extraordinary, exceptional, unusual or nonrecurring gain, loss, charge or expense, or any charges, expenses or reserves in respect of any redundancy or severance expense, new product introductions or one-time compensation charges;

 

(e) the cumulative effect of a change in accounting principles;

 

(f) any (A) non-cash compensation charge or expense arising from any grant of stock, stock options or other equity based awards and any non-cash deemed finance charges in respect of any pension liabilities or other provisions and (B) income (loss) attributable to deferred compensation plans or trusts;

 

(g) all deferred financing costs written off and premiums paid or other expenses incurred directly in connection with any early extinguishment of Indebtedness and any net gain (loss) from any write-off or forgiveness of Indebtedness;

 

(h) any unrealized gains or losses in respect of any obligations under any Swap Contracts or any ineffectiveness recognized in earnings related to hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of any obligations under any Swap Contracts;

 

(i) any unrealized foreign currency transaction gains or losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person and any unrealized foreign exchange gains or losses relating to translation of assets and liabilities denominated in foreign currencies;

 

(j) any purchase accounting effects including, but not limited to, adjustments to inventory, property and equipment, software and other intangible assets and deferred revenue in component amounts required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Borrower and the Restricted Subsidiaries), as a result of any consummated acquisition, or the amortization or write-off of any amounts thereof (including any write-off of in process research and development);

 

(k) any impairment charge, asset write-down or write-off, including impairment charges, or asset write-downs or write-offs relating to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation;

 

(l) any after-tax effect of income (loss) from the early extinguishment or cancellation of Indebtedness or any obligations under any Swap Contracts or other derivative instruments;

 

(m) accruals and reserves that are established within twelve months after the Closing Date that are so required to be established as a result of the Transactions in accordance with GAAP;

 

(n) any net unrealized gains and losses resulting from Swap Contracts or embedded derivatives that require similar accounting treatment and the application of Accounting Standards Codification Topic 815 and related pronouncements; and

 

 

(o) any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowance related to such item.

 

In addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include (i) any expenses and charges that are reimbursed by indemnification or other reimbursement provisions in connection with any investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder and (ii) to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (A) not denied by the applicable carrier in writing within 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within such 365 days), expenses with respect to liability or casualty events or business interruption.

 

“Consolidated Senior Secured Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Net Debt (other than any portion of Consolidated Total Net Debt that is unsecured) as of the last day of such Test Period to (b) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such Test Period.

 

“Consolidated Total Debt” means, as of any date of determination, the aggregate principal amount of Indebtedness of the Borrower and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with the Transactions or any Permitted Acquisition), consisting of Indebtedness for borrowed money, Capitalized Lease Obligations and debt obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; provided that Consolidated Total Debt shall not include (x) obligations under Swap Contracts entered into in the ordinary course of business and not for speculative purposes, (y) undrawn letters of credit and (z) Floor Plan Debt.

 

“Consolidated Total Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Debt as of the last day of such Test Period to (b) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such Test Period.

 

“Consolidated Total Net Debt” means, as of any date of determination, (a) Consolidated Total Debt minus (b) an aggregate amount of up to $50,000,000 of unrestricted cash and cash equivalents of the Borrower and its Restricted Subsidiaries as of such date held in (i) reserve accounts in connection with any prepayment of the PPP Debt and (ii) accounts that are subject to a control agreement in favor of the Administrative Agent.

 

“Consolidated Total Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for such Test Period.

 

“Consolidated Working Capital” means, at any date, the excess of (x) the sum of (i) all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries at such date and (ii) long-term accounts receivable over (y) the sum of (i) all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries on such date and (ii) long-term deferred revenue, but excluding, without duplication, (a) the current portion of any funded debt or other long-term liabilities, (b) the current portion of interest, (c) the current portion of current and deferred income taxes, (d) the current portion of any Capitalized Lease Obligations, (e) deferred revenue arising from cash receipts that are earmarked for specific projects, (f) the current portion of deferred acquisition costs and (g) current accrued costs associated with any restructuring or business optimization (including accrued severance and accrued facility closure costs).

 

“Consumer Warehouse Assets” means indebtedness and obligations (including related assets such as accounts receivable, notes, lease receivables, payment intangibles or other payment obligations) owing to or owned by any Consumer Warehouse Subsidiary or any interest in any of the foregoing, together, in each case, with any collections and other proceeds thereof, any collection or deposit account related thereto, and any collateral, security agreements, guarantees or other property or claims, in each case, supporting or securing payment by the obligor thereon of, or otherwise related to any such Indebtedness and/or receivables.

 

“Consumer Warehouse Debt” means Indebtedness incurred pursuant to any Consumer Warehouse Facility.

 

 

“Consumer Warehouse Facility” means any debt facility entered into by a Consumer Warehouse Subsidiary for the purpose of financing the origination of Consumer Warehouse Assets (or assets intended to become Consumer Warehouse Assets) that meets the following conditions:

 

(a) the Borrower shall have determined in good faith that such Consumer Warehouse Facility (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Borrower and its Restricted Subsidiaries; and

 

(b) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Borrower) and may include Standard Consumer Warehouse Undertakings.

 

“Consumer Warehouse Repurchase Obligation” means any obligation of a Consumer Warehouse Subsidiary to repurchase any Consumer Warehouse Assets financed pursuant to a Consumer Warehouse Facility arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to such Consumer Warehouse Subsidiary.

 

“Consumer Warehouse Subsidiary” means a trust, bankruptcy remote entity or other special purpose entity which is a wholly owned Subsidiary of RumbleOn Finance and which is formed for the purpose of and engages in no material business other than financing (directly or indirectly), or enabling the financing of, the origination of Consumer Warehouse Assets (and, in connection therewith, owning Consumer Warehouse Assets and pledging or transferring any of the foregoing or interests therein and engaging in any business or activities incidental or related thereto), and:

 

(a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Borrower or any other Restricted Subsidiary (other than RumbleOn Finance), (ii) is recourse to or obligates the Borrower or any other Restricted Subsidiary (other than RumbleOn Finance) in any way or (iii) subjects any property or asset of the Borrower or any other Restricted Subsidiary (other than RumbleOn Finance), directly or indirectly, contingently or otherwise, to the satisfaction thereof ;

 

(b) with which neither the Borrower nor any other Restricted Subsidiary of the Borrower has any material contract, agreement, arrangement or understanding other than on terms which the Borrower reasonably believes to be no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Borrower; and

 

(c) to which neither the Borrower nor any other Restricted Subsidiary (other than RumbleOn Finance) has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

 

“Continuing Directors” means the directors, managers or equivalent body of the Borrower on the Closing Date, as elected or appointed after giving effect to the Acquisition and the other transactions contemplated hereby, and each other director, manager or equivalent body, if, in each case, such other director’s, manager’s or equivalent body’s nomination for election to the board of directors, managers or other governing body of the Borrower is recommended by a majority of the then Continuing Directors or such other director, manager or equivalent body receives the vote of the Permitted Holders in his or her election by the stockholders or partners of the Borrower.

 

“Contract Consideration” has the meaning specified in the definition of “Excess Cash Flow.”

 

“Contractual Obligation” means, as to any Person, any provision of any security issued by such person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

“Control” has the meaning specified in the definition of “Affiliate.”

 

“Control Agreement” shall mean, with respect to any Deposit Account or Securities Account maintained by the Borrower, one or more control agreements entered into by the Borrower, the Collateral Agent and the Depositary Bank, which is sufficient to establish the Collateral Agent’s control of any Deposit Account pursuant to Section 9-104 of the UCC and Securities Account pursuant to Section 8-106 of the UCC, in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent (it being understood and agreed that any Control Agreements entered into on the Closing Date shall be deemed to be in a form reasonably satisfactory to the Administrative Agent).

 

 

“Converted Restricted Subsidiary” has the meaning specified in the definition of “Consolidated EBITDA.”

 

“Converted Unrestricted Subsidiary” has the meaning specified in the definition of “Consolidated EBITDA.”

 

“Convertible Notes” means the convertible notes issued pursuant to that certain Indenture, dated January 14, 2020, between Borrower and Wilmington Trust, National Association, as trustee, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

“Corresponding Loan Amount” has the meaning assigned to it in Section 9.15(c).

 

“Corresponding Tenor” means, with respect to any Available Tenor, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

 

“Covered Entity” means the Borrower, each of Borrower’s Subsidiaries, all Guarantors and all pledgors of Collateral that are Loan Parties.

 

“Covered Entity Controlling Person” means each Person that, directly or indirectly, is in control of a Covered Entity. For purposes of this definition, control of a Person means the direct or indirect (x) ownership of, or power to vote, 25% or more of the issued and outstanding equity interests having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise.

 

“Credit Extension” means a Borrowing.

 

“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion (in consultation with the Borrower).

 

“Debtor Relief Laws” means the Bankruptcy Code of the United States and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

“Declined Proceeds” has the meaning specified in Section 2.03(b)(v).

 

“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

 

“Default Rate” means an interest rate equal to (a) with respect to any overdue principal for any Loan, the applicable interest rate for such Loan plus 2.00% per annum (provided that with respect to Eurocurrency Rate Loans, the determination of the applicable interest rate is subject to Section 2.02(c) to the extent that Eurocurrency Rate Loans may not be converted to, or continued as, Eurocurrency Rate Loans, pursuant thereto) and (b) with respect to any other overdue amount, including overdue interest, the interest rate applicable to Base Rate Loans plus 2.00% per annum, in each case, to the fullest extent permitted by applicable Laws.

 

“Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans required to be funded by it, or (ii) pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied or waived, (b) has notified the Borrower or the Administrative Agent or any other Lender in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan cannot be satisfied or waived), (c) has failed, within three (3) Business Days after request by the Borrower, Administrative Agent or any other Lender, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon Borrower’s and such Administrative Agent’s or Lender’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) after the date of this Agreement, has become the subject of a Bankruptcy Event.

 

 

“Delayed Draw Funding Date” means any date on which the Delayed Draw Term Loans are funded hereunder, which shall in no event be (i) earlier than the six (6) month anniversary of the Closing Date or (ii) later than the Delayed Draw Term Loan Commitment Termination Date.

 

“Delayed Draw Term Commitment” means, as to each Delayed Draw Term Lender, its obligation to make a Delayed Draw Term Loan to the Borrower pursuant to Section 2.01(b) in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Delayed Draw Term Commitment” or in the Assignment and Assumption pursuant to which such Delayed Draw Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The initial aggregate amount of the Delayed Draw Term Commitments is $120,000,000. If the Delayed Draw Term Commitment has not been drawn in full by the Delayed Draw Term Loan Commitment Termination Date, any remaining unused portion of the Delayed Draw Term Commitments shall be reduced to $0.

 

“Delayed Draw Term Lender” means, at any time, any Lender that has a Delayed Draw Term Commitment or a Delayed Draw Term Loan at such time.

 

“Delayed Draw Term Loan” means a Loan made pursuant to Section 2.01(b).

 

“Delayed Draw Term Loan Commitment Termination Date” means the earlier of (i) the date that is the eighteen (18) month anniversary of the Closing Date and (ii) with respect to any Delayed Draw Term Commitment that is terminated pursuant to Section 2.04, the termination of such Delayed Draw Term Commitment; provided that if such date is not a Business Day, the “Delayed Draw Term Loan Commitment Termination Date” will be the next succeeding Business Day.

 

“Deposit Account” has the meaning specified in the UCC.

 

“Depositary Bank” shall mean the bank which maintains a subject Deposit Account or Securities Account.

 

“Discount Range” has the meaning specified in Section 2.03(d)(ii).

 

“Discounted Prepayment Option Notice” has the meaning specified in Section 2.03(d)(ii).

 

“Discounted Value” means, with respect to the Called Principal of any Loan, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the repayment or prepayment date (or, in the case the Called Principal has become or is declared to be immediately due and payable pursuant to Section 8.02, to the date on which such Called Principal has become or is so declared to be immediately due and payable) with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Loans is payable) equal to the Reinvestment Yield with respect to such Called Principal.

 

“Discounted Voluntary Prepayment” has the meaning specified in Section 2.03(d)(i).

 

“Discounted Voluntary Prepayment Notice” has the meaning specified in Section 2.03(d)(v).

 

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale Leaseback and any sale of Equity Interests) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that (i) “Disposition” and “Dispose” shall not be deemed to include any issuance by the Borrower of any of its Equity Interests to another Person or the issuance of any Equity Interest by a Subsidiary to Borrower or a Restricted Subsidiary and (ii) no transaction or series of related transactions shall be considered a “Disposition” for purpose of Section 2.03(b)(ii) or Section 7.05 unless the fair market value (as determined in good faith by the Borrower) of the property disposed of in such transaction or series of transactions shall exceed $1,000,000 in any fiscal year.

 

“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Term Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time such Equity Interests are issued.

 

 

“Dollar” and “$” mean lawful money of the United States.

 

“Domestic Foreign Holding Company” means any Domestic Subsidiary with no material assets other than Equity Interests and/or Indebtedness of one or more Foreign Subsidiaries that are CFCs.

 

“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.

 

“Early Opt-in Election” means in the case of a Eurocurrency Rate Loan in Dollars, the occurrence of: (1) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and (2) the joint election by the Administrative Agent and the Borrower to trigger a fallback from Eurocurrency Rate and the provision by the Administrative Agent of written notice of such election to the Lenders.

 

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.

 

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

“Eligible Assignee” means any Assignee permitted by and consented to in accordance with Section 10.07(b).

 

“Environment” means ambient air, indoor or outdoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetlands, flora and fauna.

 

“Environmental Laws” means any and all applicable Laws relating to pollution, the environment, natural resources or to the generation, transport, storage, use, treatment, Release or threat of Release of any hazardous or toxic substances or, to the extent relating to exposure to hazardous or toxic substances, human health or safety.

 

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any Loan Party or any of its respective Subsidiaries directly or indirectly resulting from or based upon (a) any violation of Environmental Law, (b) the generation, use, handling, transportation, storage or treatment of any Hazardous Materials, (c) exposure of any Person to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other consensual arrangement to the extent liability is assumed or imposed with respect to any of the foregoing.

 

“Equity Contribution” means cash raised from the issuance of Equity Interests in the Borrower since March 12, 2021 in an aggregate amount equal to at least $170,000,000.

 

“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

 

“ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control with any Loan Party and is treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA.

 

 

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA with respect to a Pension Plan, whether or not waived, or a failure to make any required contribution to a Multiemployer Plan; (d) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan, notification of any Loan Party or ERISA Affiliate concerning the imposition of Withdrawal Liability or notification that a Multiemployer Plan is insolvent or in reorganization within the meaning of Title IV of ERISA or in endangered or critical status, within the meaning of Section 305 of ERISA; (e) the filing of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; (h) a determination that any Pension Plan is, or is expected to be, in “at-risk” status (within the meaning of Section 303(i)(4)(A) of ERISA or Section 430(i)(4)(A) of the Code); or (i) the occurrence of a non-exempt prohibited transaction with respect to any Pension Plan maintained or contributed to by any Loan Party (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could result in liability to any Loan Party.

 

“Erroneous Payment” has the meaning assigned to it in Section 9.15(a).

 

“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 9.15(c).

 

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

 

“Eurocurrency Rate” means, for any Eurocurrency Rate Loan for the then current Interest Period relating thereto, the interest rate per annum determined by Administrative Agent by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (a) the rate which appears on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which U.S. dollar deposits are offered by leading banks in the London interbank deposit market), or the rate which is quoted by another source selected by Administrative Agent which has been approved by the British Bankers’ Association as an authorized information vendor for the purpose of displaying rates at which U.S. dollar deposits are offered by leading banks in the London interbank deposit market (a “Eurocurrency Screen Rate”), at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period as the London interbank offered rate for U.S. Dollars for an amount comparable to such Eurocurrency Rate Loan and having a borrowing date and a maturity comparable to such Interest Period (or if there shall at any time, for any reason, no longer exist a Bloomberg Page BBAM1 (or any substitute page) or any Eurocurrency Screen Rate, a comparable replacement rate determined by Administrative Agent at such time (which determination shall be conclusive absent manifest error)), by (b) a number equal 1.00 minus the Reserve Percentage; provided, however, that if the Eurocurrency Rate determined as provided above would be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement. Administrative Agent shall give reasonably prompt notice to the Borrower of the Eurocurrency Rate as determined in accordance herewith, which determination shall be conclusive absent manifest error.

 

“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the Eurocurrency Rate.

 

“Eurocurrency Screen Rate” has the meaning assigned to it in the definition of “Eurocurrency Rate.”

 

“Event of Default” has the meaning specified in Section 8.01.

 

“Excess Cash Flow” means, for any period, an amount equal to the excess of:

 

(a) the sum, without duplication, of:

 

(i) Consolidated Net Income for such period;

 

(ii) an amount equal to the amount of all non-cash charges (including depreciation and amortization) to the extent deducted in arriving at such Consolidated Net Income;

 

(iii) decreases in Consolidated Working Capital for such period (other than any such decreases arising from acquisitions by the Borrower and its Restricted Subsidiaries completed during such period or the application of purchase accounting);

 

 

(iv) an amount equal to the aggregate net non-cash loss on Dispositions by the Borrower and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; and

 

(v) cash receipts in respect of Swap Contracts during such period to the extent not otherwise included in Consolidated Net Income; over

 

(b) the sum, without duplication, of:

 

(i) an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges to the extent included in arriving at such Consolidated Net Income;

 

(ii) without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Capital Expenditures or acquisitions made in cash during such period, except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of an incurrence or issuance of Indebtedness of the Borrower or its Restricted Subsidiaries;

 

(iii) the aggregate amount of all principal payments of Indebtedness of the Borrower and its Restricted Subsidiaries (including (A) payments of the principal component of Capitalized Lease Obligations and (B) the amount of repayments of Term Loans pursuant to Section 2.05 and any mandatory prepayment of Term Loans pursuant to Section 2.03(b)(ii) to the extent required due to a Disposition that resulted in an increase to such Consolidated Net Income and not in excess of the amount of such increase (but excluding, for the avoidance of doubt, all other prepayments of Term Loans), except to the extent financed with the proceeds of an incurrence or issuance of other Indebtedness of the Borrower or its Subsidiaries;

 

(iv) an amount equal to the aggregate net non-cash gain on Dispositions by the Borrower and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income;

 

(v) increases in Consolidated Working Capital for such period (other than any such increases arising from acquisitions by the Borrower and its Restricted Subsidiaries completed during such period or the application of purchase accounting);

 

(vi) cash payments by the Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and its Restricted Subsidiaries other than Indebtedness (including such Indebtedness specified in clause (b)(iii) above);

 

(vii) without duplication of amounts deducted pursuant to clause (xi) below in prior periods, the amount of Investments and acquisitions made during such period pursuant to Section 7.02 (other than Section 7.02(a) and (d)) except to the extent that such Investments and acquisitions were financed with the proceeds of an incurrence or issuance of Indebtedness of the Borrower or its Restricted Subsidiaries;

 

(viii) the amount of Restricted Payments paid during such period pursuant to Section 7.06 (other than Section 7.06(a) (solely in respect of amounts paid to the Borrower or a Restricted Subsidiary), (b), (f) and (i) except to the extent that such Restricted Payments were financed with the proceeds of an incurrence or issuance of Indebtedness of the Borrower or its Restricted Subsidiaries;

 

(ix) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and its Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness except to the extent that such amounts (but not the Indebtedness so prepaid) were financed with the proceeds of an incurrence or issuance of Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans);

 

(x) the aggregate amount of expenditures actually made by the Borrower and its Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period and were not financed with the proceeds of an incurrence or issuance of Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans);

 

(xi) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions, Capital Expenditures or acquisitions to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period except to the extent intended to be financed with the proceeds of an incurrence or issuance of other Indebtedness of the Borrower or its Restricted Subsidiaries; provided that to the extent the aggregate amount utilized to finance such Permitted Acquisitions, Capital Expenditures or acquisitions during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall, shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters;

 

 

(xii) the amount of cash taxes (including penalties and interest) paid or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period; and

 

(xiii) cash expenditures in respect of Swap Contracts during such fiscal year to the extent not deducted in arriving at such Consolidated Net Income.

 

“Exchange Act” means the Securities Exchange Act of 1934.

 

“Excluded Account” means (a) any Deposit Account, Commodity Account or Securities Account so long as the average daily maximum balance in each such account, individually, does not exceed $250,000 over any 30-day period and the aggregate daily maximum balance of all such Deposit Accounts, Commodity Accounts and Securities Accounts does not at any time exceed $500,000, (b) any Deposit Account that is a zero balance account for which the balance of such Deposit Account is transferred at the end of each day to a deposit account that is not an Excluded Account, (c) any Deposit Accounts exclusively used for trust, payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any employees, (d) any fiduciary accounts, (f) any Deposit Account held by a Consumer Warehouse Subsidiary and (g) any Deposit Account holding cash reserves that are required pursuant to the terms of any Floor Plan Financing.

 

“Excluded Equity” means Equity Interests (i) of any Foreign Subsidiary or Domestic Foreign Holding Company, in each case of the Borrower or a Domestic Subsidiary of the Borrower and not otherwise constituting Excluded Equity, in excess of 66% of the issued and outstanding Equity Interests of each such Foreign Subsidiary or Domestic Foreign Holding Company, (ii) of any Subsidiary with respect to which the Administrative Agent and the Borrower have determined in their reasonable judgment and agreed in writing that the costs of providing a pledge of such Equity Interests or perfection thereof is excessive in view of the benefits to be obtained by the Secured Parties therefrom, (iii) of any captive insurance companies, not-for-profit Subsidiaries, special purpose entities, (iv) of any non-Wholly-Owned Restricted Subsidiary that constitutes a joint venture; (v) of any Subsidiary outside the United States the pledge of which is prohibited by applicable Laws or which would reasonably be expected to result in a violation or breach of, or conflict with, fiduciary duties of such Subsidiary’s officers, directors or managers; and (vi) the Equity Interest of any Consumer Warehouse Subsidiary.

 

“Excluded Property” means (i) any fee-owned real property that is not a Material Real Property and any leasehold interests in real property, (ii) (A) motor vehicles and other assets subject to certificates of title to the extent a Lien thereon cannot be perfected by the filing of a UCC financing statement, (B) letter of credit rights to the extent a Lien thereon cannot be perfected by the filing of a UCC financing statement, and (C) any commercial tort claims that are not Material Commercial Tort Claims, (iii) those assets over which the granting of security interests in such assets would be prohibited by contract binding on such assets at the time of their acquisition and not incurred in contemplation of such acquisition (including permitted liens, leases and licenses), applicable law or regulation (in each case, for which no consent has been obtained after using commercially reasonable efforts to do so and except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code, other than proceeds thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions) or to the extent that such security interests would require obtaining the consent of any governmental authority or would result in materially adverse tax consequences as reasonably determined by the Borrower and the Administrative Agent, (iv) margin stock and other Excluded Equity, (v) any lease, license or other agreements, or any property subject to a purchase money security interest, Capitalized Lease Obligation or similar arrangements, in each case to the extent permitted under the Loan Documents, to the extent that a pledge thereof or a security interest therein would violate or invalidate such lease, license or agreement, purchase money, Capitalized Lease or similar arrangement, or create a right of termination in favor of any other party thereto (other than the Borrower or a Guarantor) after giving effect to the applicable anti-assignment clauses of the Uniform Commercial Code and applicable Laws, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under applicable Laws notwithstanding such prohibition, (vi) assets for which the Administrative Agent and the Borrower have determined in their reasonable judgment and agree in writing that the cost of creating or perfecting such pledges or security interests therein would be excessive in view of the benefits to be obtained by the Lenders therefrom, (vii) any intent-to-use trademark application in the United States prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant, attachment, or enforcement of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable Federal law, (viii) up to $5,200,000 of cash held in an escrow account or reserve account in connection with any prepayment of the PPP Debt, (ix) cash and Cash Equivalents on deposit in Excluded Accounts (other than cash and Cash Equivalents on deposit in Deposit Accounts holding cash reserves that are required pursuant to the terms of any Floor Plan Financing if and to the extent that such Lien on such cash and Cash Equivalents is consented to by the capital provider of such Floor Plan Financing) and (x) assets of Excluded Subsidiaries.

 

“Excluded Subsidiary” means (a) any Subsidiary that is prohibited by applicable Law or by any contractual obligation existing on the Closing Date (or, if later, the date such Subsidiary first becomes a Subsidiary) from guaranteeing the Obligations (and in the case of such contractual obligation, not entered into in contemplation of the acquisition of such Subsidiary) or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee unless such consent, approval, license or authorization has been received, (b) any Immaterial Subsidiary or Unrestricted Subsidiary, (c) captive insurance companies, (d) not-for-profit Subsidiaries, (e) special purpose entities, (f) any non-Wholly-Owned Subsidiary, (g) any Domestic Foreign Holding Company or Foreign Subsidiary, (i) any Domestic Subsidiary of a Subsidiary described in clause (h), (h) any Consumer Warehouse Subsidiary and (i) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice to the Borrower), the cost or other consequences (including any adverse tax consequences) of providing a Guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom. Notwithstanding the foregoing, no Subsidiary shall be an Excluded Subsidiary unless such Subsidiary is an “Excluded Subsidiary” under (and as defined in) this Agreement.

 

 

“Excluded Taxes” means, with respect to any Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party under any Loan Document, (a) Taxes imposed by any jurisdiction as a result of a present or former connection of such Agent, Lender or other recipient, as the case may be, with such jurisdiction (including as a result of being resident or being deemed to be resident, being organized, maintaining an Applicable Lending Office or carrying on business or being deemed to carry on business in such jurisdiction) (other than any connection arising solely from any Loan Documents or any transactions contemplated thereby), (b) any U.S. federal withholding Taxes imposed on amounts payable to or for the account of any Lender pursuant to a law in effect at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 3.06(a)) (or designates a new Applicable Lending Office), except to the extent such Lender’s assignor was entitled immediately prior to the assignment, or such Lender was entitled immediately before it designated a new Applicable Lending Office, to receive additional amounts from any Loan Party with respect to such Taxes pursuant to Section 3.01(a), (c) any withholding Tax resulting from a failure of a Lender to comply with Section 3.01(f) or a failure of the Administrative Agent to comply with Section 3.01(g), (d) any U.S. federal withholding Tax imposed pursuant to FATCA and (e) any U.S. federal backup withholding imposed pursuant to Section 3406 of the Code.

 

“Existing Company Term Loan Agreement” means that certain Term Loan Agreement, dated as of July 1, 2016, by and among CMG Powersports, Inc., America’s Powersports, Inc., San Diego House of Motorcycles, Inc., Woods Fun Center, Inc., APS Austin Holdings, LLC, APS Texas Holdings, LLC, APS of Texas LLC, APS of Oklahoma, LLC and APS of Ohio, LLC, collectively, as borrower, and The Northern Trust Company, as bank, as amended, restated, amended and restated, supplemented or otherwise modified prior to the Closing Date.

 

“Facility” means a Class of Term Loans.

 

“FATCA” means current Sections 1471 through 1474 of the Code (and any amended or successor version that is substantively comparable) or any current or future Treasury regulations with respect thereto or other official administrative interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above), any intergovernmental agreements entered into to implement or further the collection of Taxes imposed pursuant to the foregoing (together with any law implementing such agreements) and any Laws, fiscal or regulatory legislation, rules, guidance notes and practices adopted by a non-U.S. jurisdiction to implement the foregoing.

 

“FCPA” means the United States Foreign Corrupt Practices Act of 1977, as amended.

 

“Federal Funds Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the Federal Funds Rate; provided, that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to three (3) major banks on such day on such transactions as determined by the Administrative Agent; provided, further, that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

 

“Fee Letter” means the Fee Letter dated March 12, 2021, among the Borrower and Oaktree Capital Management, L.P., as amended, supplemented or otherwise modified from time to time.

 

“Financial Covenants” means the covenants set forth in Section 7.10.

 

“Fitch” means Fitch Ratings Inc. and any successor thereto.

 

“Fixed Amounts” has the meaning specified in Section 1.09.

 

“Flood Insurance Laws” means, collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

 

“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to Eurocurrency Rate.

 

“Floor Plan Financing” means financing arrangements pursuant to which a capital provider agrees to extend credit to Borrower or a Restricted Subsidiary to finance Floor Plan Units that are either held available for sale or as inventory by Borrower or such Restricted Subsidiary.

 

“Floor Plan Debt” means all Indebtedness of the Borrower and its Restricted Subsidiaries incurred to finance Floor Plan Units.

 

 

“Floor Plan Interest Expense” means that component of the Borrower’s and its Restricted Subsidiaries’ aggregate Consolidated Interest Expense attributable to Floor Plan Debt.

 

“Floor Plan Units” means inventory of the Borrower and its Restricted Subsidiaries consisting of automobiles, motorcycles, power sports vehicles or any other vehicle sold or leased by the Borrower or its Restricted Subsidiaries in the ordinary course of their business. Floor Plan Units do not include supplies or spare parts inventory.

 

“Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to or by, or entered into with, any Loan Party or any Restricted Subsidiary with respect to employees outside the United States.

 

“Foreign Subsidiary” means any direct or indirect Restricted Subsidiary of the Borrower which is not a Domestic Subsidiary.

 

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

 

“Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

 

“GAAP” means generally accepted accounting principles in the United States, as in effect from time to time; provided that (A) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith, (B) at any time after the Closing Date, the Borrower may elect, upon notice to the Administrative Agent, to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided herein), including as to the ability of the Borrower or the Required Lenders to make an election pursuant to clause (A) of this proviso, (C) any election made pursuant to clause (B) of this proviso, once made, shall be irrevocable, (D) any calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to the Borrower’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP and (E) the Borrower may only make an election pursuant to clause (B) of this proviso if it also elects to report any subsequent financial reports required to be made by the Borrower, including pursuant to Sections 6.01(a) and (b), in IFRS.

 

“Governmental Body” means any nation or government, any state or other political subdivision thereof or any entity, authority, agency, division or department exercising the executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to a government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting financial accounting or regulatory capital rules or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).

 

“Granting Lender” has the meaning specified in Section 10.07(h).

 

“Guarantee Obligations” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee Obligations” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

 

 

“Guarantees” has the meaning specified in the definition of “Collateral and Guarantee Requirement.”

 

“Guarantors” has the meaning specified in the definition of “Collateral and Guarantee Requirement.” For avoidance of doubt, the Borrower in its sole discretion may cause any Restricted Subsidiary that is not a Guarantor to Guarantee the Obligations by causing such Restricted Subsidiary to execute and deliver to the Administrative Agent a Guaranty Supplement (as defined in the Guaranty), and any such Restricted Subsidiary shall thereafter be a Guarantor, Loan Party and Subsidiary Guarantor hereunder for all purposes; provided that if such Restricted Subsidiary is not organized in the United States, (i) the jurisdiction of organization of such Restricted Subsidiary shall be reasonably satisfactory to the Collateral Agent if acting as Collateral Agent or entering into Loan Documents with Subsidiaries in such jurisdiction is prohibited by applicable Law or would expose the Collateral Agent, in its capacity as such, to material additional liabilities and (ii) such Restricted Subsidiary shall have complied with the Collateral and Guarantee Requirement prior to the becoming a Guarantor.

 

“Guaranty” means, collectively, (a) the Guaranty substantially in the form of Exhibit E and (b) each other guaranty and guaranty supplement delivered pursuant to Section 6.10.

 

“Hazardous Materials” means all hazardous, toxic, explosive or radioactive substances or wastes, and all other chemicals, pollutants, contaminants, substances or wastes of any nature regulated pursuant to any Environmental Law because of their hazardous, toxic, dangerous or deleterious characteristics or properties, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas and toxic mold.

 

“IFRS” means International Financial Reporting Standards as adopted in the European Union.

 

“Immaterial Subsidiary” means, at any date of determination, each Restricted Subsidiary of the Borrower (i) whose total assets as of the last day of the most recent Test Period are less than 2.5% of the total assets of the Borrower and its Restricted Subsidiaries as of such date, (ii) whose gross revenues as of the last day of the most recent Test Period are less than 2.5% of the consolidated gross revenues of the Borrower and its Restricted Subsidiaries for such period and (iii) that has been designated by the Borrower in writing to the Administrative Agent as an “Immaterial Subsidiary” for purposes of this Agreement (and not redesignated as a Material Subsidiary as provided below), provided that (a) for purposes of this Agreement, at no time shall (i) the total assets of all Immaterial Subsidiaries at the last day of the most recent Test Period equal or exceed 5.0% of the total assets of the Borrower and its Restricted Subsidiaries at such date or (ii) the gross revenues for such Test Period of all Immaterial Subsidiaries equal or exceed 5.0% of the consolidated gross revenues of the Borrower and its Restricted Subsidiaries for such period, in each case determined on a consolidated basis in accordance with GAAP, (b) the Borrower shall not designate any new Immaterial Subsidiary if such designation would not comply with the provisions set forth in clause (a) above, and (c) if the total assets or gross revenues of all Restricted Subsidiaries so designated by the Borrower as “Immaterial Subsidiaries” (and not redesignated as “Material Subsidiaries”) shall at any time exceed the limits set forth in clause (a) above, then all such Restricted Subsidiaries shall be deemed to be Material Subsidiaries unless and until the Borrower shall redesignate one or more Immaterial Subsidiaries as Material Subsidiaries, in each case in a written notice to the Administrative Agent, and, as a result thereof, the total assets and gross revenues of all Restricted Subsidiaries still designated as “Immaterial Subsidiaries” do not exceed such limits; and provided, further, that the Borrower may designate and re-designate a Restricted Subsidiary as an Immaterial Subsidiary at any time, subject to the terms set forth in this definition.

 

“Incremental Facility” means any Facility consisting of Incremental Term Loans.

 

“Incremental Facility Amendment” has the meaning specified in Section 2.12(c).

 

“Incremental Facility Closing Date” has the meaning specified in Section 2.12(c).

 

“Incremental Term Loan Conditions” means the following conditions:

 

(a) the Consolidated Total Net Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, calculated on a Pro Forma Basis and giving effect to the use of proceeds of the applicable Incremental Term Loans (excluding the cash proceeds to the Borrower of such Incremental Term Loans), shall not exceed 2.50 to 1.00;

 

(b) the proceeds of borrowings of Incremental Term Loans shall only be used by the Borrower (A) to finance Permitted Acquisitions and similar investments (and such Incremental Term Loans may be drawn prior to or substantially simultaneously with the consummation of such Permitted Acquisition or investment), and earn-outs and (B) in each case, to pay related fees and expenses, including earn-out obligations with respect to such Permitted Acquisitions and other similar investments;

 

(c) no Default shall have occurred and be continuing, or would result from such proposed Borrowing or from the application of the proceeds therefrom; provided that, if the proceeds of such Incremental Term Loans will be used in connection with a Permitted Acquisition, this clause (c) shall only require that no Event of Default shall have occurred and be continuing, or would result from such proposed Borrowing or from the application of the proceeds therefrom; and

 

 

(d) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of the making of such Incremental Term Loan; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date: provided. further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates; provided however, if the proceeds of such Incremental Term Loans will be used in connection with a Permitted Acquisition, solely the Specified Representations shall be true and correct in all material respects on and as of the date of the making of the Incremental Term Loan; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

 

“Incremental Term Loans” has the meaning specified in Section 2.12(a).

 

“Incurrence-Based Amounts” has the meaning specified in Section 1.09.

 

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

 

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

 

(b) the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all letters of credit (including standby and commercial), banker’s acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;

 

(c) net obligations of such Person under any Swap Contract;

 

(d) all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business and (ii) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid within thirty (30) days after becoming due and payable);

 

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

 

(f) all Attributable Indebtedness;

 

(g) all obligations of such Person in respect of Disqualified Equity Interests; and

 

(h) all Guarantee Obligations of such Person in respect of any of the foregoing.

 

For all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation, company, or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Debt and (B) in the case of the Borrower and its Restricted Subsidiaries, exclude all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business consistent with past practice. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.

 

“Indemnified Liabilities” has the meaning specified in Section 10.05.

 

“Indemnified Taxes” means (a) all Taxes, other than Excluded Taxes, imposed on or in respect of any payment made by or on account of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

 

 

“Indemnitees” has the meaning specified in Section 10.05.

 

“Information” has the meaning specified in Section 10.08.

 

“Initial Term Commitment” means, as to each Initial Term Lender, its obligation to make an Initial Term Loan to the Borrower pursuant to Section 2.01(a) in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Initial Term Commitment”. The initial aggregate amount of the Initial Term Commitments is $280,000,000.

 

“Initial Term Lender” means, at any time, any Lender that has an Initial Term Commitment or an Initial Term Loan at such time.

 

“Initial Term Loan” means a Loan made pursuant to Section 2.01(a).

 

“Interest Payment Date” means (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made.

 

“Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two (to the extent available), three or six months thereafter, as selected by the Borrower in its Committed Loan Notice; provided that:

 

(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

(c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.

 

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee Obligation with respect to any obligation of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person (excluding, in the case of the Borrower and its Restricted Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business consistent with past practice) or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

 

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by Fitch, Inc.

 

“IP Rights” has the meaning specified in Section 5.14.

 

“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.

 

“Judgment Currency” has the meaning specified in Section 10.17.

 

“Latest Maturity Date” means, at any date of determination, the latest Maturity Date applicable to any Loan or Term Commitment hereunder at such time, including the latest maturity date of any Incremental Term Loan, in each case as extended in accordance with this Agreement from time to time.

 

 

“Law(s)” means any law(s) (including common law), constitution, statute, treaty, regulation, rule, ordinance, opinion, issued guidance, release, ruling, order, executive order, injunction, writ, decree, bond, judgment, authorization or approval, lien or award of or any settlement arrangement, by agreement, consent or otherwise, with any Governmental Body, foreign or domestic.

 

“Lender” has the meaning specified in the introductory paragraph to this Agreement.

 

“Lender Participation Notice” has the meaning specified in Section 2.03(d)(iii).

 

“LIBOR” shall mean the rate of interest described in clause (a) of the definition of Eurocurrency Rate.

 

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, assignment (by way of security or otherwise), deemed trust, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing).

 

“Liquidity” means unrestricted cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries, measured on a consolidated basis.

 

“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan (including any Incremental Term Loans).

 

“Loan Documents” means, collectively, (i) this Agreement, (ii) the Term Notes, (iii) each Guaranty, (v) the Collateral Documents and (vi) all other fee letters, intercreditor agreements, joinders and other agreements or instruments executed by a Loan Party in favor of Administrative Agent in connection with this Agreement and/or the Facilities hereunder, in each case, as amended, restated, amended and restated, supplemented or modified from time to time.

 

“Loan Parties” means, collectively, (i) the Borrower and (ii) each other Guarantor.

 

“Make-Whole Amount” means, with respect to the Called Principal of any Loan, an amount equal to the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Loan; provided that the Make-Whole Amount shall in no event be less than zero.

 

“Make-Whole Expiry Date” has the meaning set forth in Section 2.03(e).

 

“Master Agreement” has the meaning specified in the definition of “Swap Contract.”

 

“Material Adverse Effect” means (a) a material adverse effect on the business, operations, assets, liabilities (actual or contingent) or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to perform their respective payment obligations under any Loan Document to which any of the Loan Parties is a party or (c) a material adverse effect on the rights and remedies of the Lenders or the Agents under any Loan Document.

 

“Material Commercial Tort Claim” means any commercial tort claim where the amount of damages claimed by the applicable Loan Party is at least $1,000,000.

 

“Material Real Property” means (a) any real property owned by a Loan Party on the Closing Date and set forth on Schedule 1.01D and (b) any real property acquired by any Loan Party following the Closing Date (or owned by any Person that becomes a Loan Party after the Closing Date) located in the United States (i) with a fair market value in excess of $1,500,000 or (ii) to the extent below such threshold, that the Borrower elects (in its sole discretion) to treat as Material Real Property.

 

“Material Subsidiary” means, at any date of determination, each Restricted Subsidiary of the Borrower that is not an Immaterial Subsidiary (but including, in any case, any Restricted Subsidiary that has been designated as a Material Subsidiary as provided in, or that has been designated as an Immaterial Subsidiary in a manner that does not comply with, the definition of “Immaterial Subsidiary”).

 

“Maturity Date” means (a) the fifth anniversary of the Closing Date or (b) with respect to any Incremental Term Loan, the maturity date applicable to such Incremental Term Loan in accordance with the terms hereof; provided that if any such day is not a Business Day, the Maturity Date shall be the Business Day immediately preceding such day.

 

 

“Merged Entities” has the meaning specified in the Preliminary Statements to this Agreement.

 

“Merger Sub I” has the meaning specified in the Preliminary Statements to this Agreement.

 

“Merger Sub II” has the meaning specified in the Preliminary Statements to this Agreement.

 

“Merger Sub III” has the meaning specified in the Preliminary Statements to this Agreement.

 

“Merger Sub IV” has the meaning specified in the Preliminary Statements to this Agreement.

 

“Merger Subs” has the meaning specified in the Preliminary Statements to this Agreement.

 

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

“Mortgage” means, collectively, the deeds of trust, trust deeds, deeds of hypothecation, security deeds, immovable hypothecs, and mortgages creating and evidencing a Lien on a Mortgaged Property made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties in form and substance reasonably satisfactory to the Collateral Agent, and any other mortgages executed and delivered pursuant to Section 4.01(a)(iv) and Section 6.10 and/or Section 6.12, as applicable.

 

“Mortgage Policies” has the meaning specified in paragraph (f) of the definition of Collateral and Guarantee Requirement.

 

“Mortgaged Property” means each Material Real Property, if any, which shall be subject to a Mortgage delivered pursuant to Section 4.01(a)(iv), Section 6.10 and/or Section 6.12, as applicable.

 

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the immediately preceding five (5) plan years, has made or been obligated to make contributions.

 

“Net Cash Proceeds” means:

 

(a) with respect to the Disposition of any asset by the Borrower or any Restricted Subsidiary or any Casualty Event, an amount equal to the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of the Borrower or any Restricted Subsidiary) over (ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness that is secured by the asset subject to such Disposition or Casualty Event and that is required to be repaid (and is timely repaid) in connection with such Disposition or Casualty Event (other than Indebtedness under the Loan Documents and Indebtedness that is secured by Liens ranking junior to or pari passu with the Liens securing Obligations under the Loan Documents), (B) the reasonable and documented out-of-pocket fees and expenses (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by the Borrower or such Restricted Subsidiary in connection with such Disposition or Casualty Event, (C) taxes paid or reasonably estimated to be actually payable in connection therewith (including, for the avoidance of doubt, any income, withholding and other taxes payable as a result of the distribution of such proceeds to the Borrower), and (D) any reserve for adjustment in respect of (x) the sale price of such asset or assets established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by the Borrower or any Restricted Subsidiary after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or with respect to any indemnification obligations associated with such transaction, it being understood that “Net Cash Proceeds” shall include (i) any cash or Cash Equivalents received upon the Disposition of any non-cash consideration by the Borrower or any Restricted Subsidiary in any such Disposition and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or if such liabilities have not been satisfied in cash and such reserve is not reversed within 365 days after such Disposition or Casualty Event, the amount of such reserve; and

 

(b) with respect to (x) the incurrence or issuance of any Indebtedness or (y) any Permitted Equity Issuance by the Borrower or any Restricted Subsidiary, the excess, if any, of (x) the sum of the cash received in connection with such incurrence or issuance over (y) the reasonable and documented out-of-pocket fees and expenses (including investment banking fees, underwriting discounts, commissions, costs and other customary expenses incurred by the Borrower or such Restricted Subsidiary) in connection with such incurrence or issuance.

 

 

“Non-Consenting Lender” has the meaning specified in Section 3.06(c).

 

“Non-Loan Party” means any Restricted Subsidiary of the Borrower that is not a Loan Party.

 

“Oaktree” means Oaktree Capital Management, L.P., as manager on behalf of certain funds and accounts and one or more entities owned by certain funds and accounts.

 

“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party or other Subsidiary arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, reimbursement obligations, charges, expenses, fees, Attorney Costs, premiums (including, without limitation, any Call Premium) indemnities and other amounts that accrue after the commencement by or against any Loan Party or any other Subsidiary of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, reimbursement obligations, charges, expenses, fees, Attorney Costs, premiums (including, without limitation, any Call Premium) indemnities and other amounts are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and of any of their Subsidiaries to the extent they have obligations under the Loan Documents) include the obligation (including guarantee obligations) to pay principal, interest, reimbursement obligations, charges, expenses, fees, Attorney Costs, premiums (including, without limitation, any Call Premium) indemnities and other amounts, in each case, payable by any Loan Party or any other Subsidiary under any Loan Document.

 

“OFAC” means the Office of Foreign Asset Control of the United States Department of the Treasury.

 

“Offered Loans” has the meaning specified in Section 2.03(d)(iii).

 

“Organization Documents” means (a) with respect to any corporation or company, the certificate or articles of incorporation, the memorandum and articles of association, any certificates of change of name and/or the bylaws; (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, declaration, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Body in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

“Other Taxes” means all present or future stamp, court or documentary Taxes and any other property, intangible, mortgage recording or similar Taxes which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document, excluding, in each case, any such Tax resulting from an Assignment and Assumption or transfer or assignment to or designation of a new Applicable Lending Office or other office for receiving payments under any Loan Document (an “Assignment Tax”) but only if such Assignment Tax does not arise as a result of an assignment (or designation of a new Applicable Lending Office) pursuant to a request by Borrower under Section 3.06.

 

“Outstanding Amount” means the outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments thereof.

 

“Participant” has the meaning specified in Section 10.07(e).

 

“Participant Register” has the meaning specified in Section 10.07(e).

 

“Payment Recipient” has the meaning assigned to it in Section 9.15(a).

 

“PBGC” means the Pension Benefit Guaranty Corporation.

 

“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA) other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) years.

 

“Permitted Acquisition” has the meaning specified in Section 7.02(j).

 

“Permitted Equity Issuance” means any sale or issuance of any Qualified Equity Interests.

 

“Permitted Holders” means, collectively, the RideNow Permitted Holders and the RumbleOn Permitted Holders.

 

 

“Permitted Liens” means any Liens permitted by Section 7.01.

 

“Permitted Recipients” has the meaning set forth in Section 10.08.

 

“Permitted Refinancing” means, with respect to any Person, any modification (other than a release of such Person), refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon, plus amounts that would otherwise be permitted under Section 7.03 (with such amounts being deemed utilization of the applicable basket or exception under Section 7.03), plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, and as otherwise permitted under Section 7.03, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.03(e), such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is secured by a Lien on the Collateral, the Lien securing such Indebtedness as modified, refinanced, refunded, renewed or extended shall not be senior in priority to the Lien on the Collateral securing the Indebtedness being modified, refinanced, refunded, renewed or extended unless otherwise permitted under any basket or exception under Section 7.01 (with such amounts constituting utilization of the applicable basket or exception under Section 7.01) and (d) if such Indebtedness being modified, refinanced, refunded, renewed or extended is Indebtedness permitted pursuant to Section 7.03(b), (i) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being so modified, refinanced, refunded, renewed or extended unless otherwise permitted by any basket or exception under Section 7.03 (with such amounts constituting utilization of the applicable basket or exception under Section 7.03), (ii) the terms and conditions (including, if applicable, as to collateral but excluding as to subordination, interest rate and redemption premium) of any such modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended (other than in the case of terms applying to periods after the then Latest Maturity Date or otherwise added for the benefit of the Lenders hereunder); provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and (iii) such modification, refinancing, refunding, renewal or extension is incurred by a Person who is the obligor of the Indebtedness being so modified, refinanced, refunded, renewed or extended or a Loan Party.

 

“Permitted Sale Leaseback” means any Sale Leaseback consummated by the Borrower or any of its Restricted Subsidiaries after the Closing Date; provided that any such Sale Leaseback that is not between (a) a Loan Party and another Loan Party or (b) a Restricted Subsidiary that is not a Loan Party and another Restricted Subsidiary that is not a Loan Party must be, in each case, consummated for fair value as determined at the time of consummation in good faith by (i) the Borrower or such Restricted Subsidiary and (ii) in the case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which exceed $1,000,000, the board of managers or directors, as applicable, of the Borrower or such Restricted Subsidiary (which such determination may take into account any retained interest or other Investment of the Borrower or such Restricted Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).

 

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Body or other entity.

 

“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) other than a Foreign Plan, established or maintained by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

 

“Platform” has the meaning specified in Section 6.02.

 

“Post-Acquisition Period” means, with respect to any Permitted Acquisition or the conversion of any Unrestricted Subsidiary into a Restricted Subsidiary, the period beginning on the date such Permitted Acquisition or conversion is consummated and ending on the last day of the fourth full consecutive fiscal quarter immediately following the date on which such Permitted Acquisition or conversion is consummated.

 

“PPP” means the Paycheck Protection Program under the CARES Act.

 

 

“PPP Debt” means Indebtedness in respect of those certain unsecured loans to the Borrower from Wood & Huston Bank under the PPP.

 

“Prime Rate” means, for any day, a rate per annum that is equal to the rate of interest established by the Administrative Agent as its prime rate from time to time or, if no such rate is then established, the rate of interest quoted by the Wall Street Journal as the “Prime Rate” or, if the Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date that such change is publicly announced or quoted as being effective.

 

“Pro Forma Adjustment” means, for any Test Period that includes all or any part of a fiscal quarter included in any Post-Acquisition Period (or, with respect to the Acquisition, the eighteen (18) months following the Closing Date), with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of the Borrower, (a) the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, that is factually supportable and is expected to have a continuing impact, in each case as determined on a basis consistent with Article 11 of Regulation S-X of the Securities Act, as interpreted by the Securities and Exchange Commission and (b) additional good faith pro forma adjustments arising out of cost savings initiatives attributable to such transaction and additional costs associated with the combination of the operations of such Acquired Entity or Business or Converted Restricted Subsidiary with the operations of the Borrower and its Restricted Subsidiaries, in each case being given pro forma effect, that (i) have been taken or (ii) will be taken or implemented following such transaction and are supportable and quantifiable and expected to be realized within the succeeding eighteen (18) months and, in each case, including, but not limited to, (w) reduction in personnel expenses, (x) reduction of costs related to administrative functions, (y) reductions of costs related to leased or owned properties and (z) reductions from the consolidation of operations and streamlining of corporate overhead taking into account, for purposes of determining such compliance, the historical financial statements of the Acquired Entity or Business or Converted Restricted Subsidiary and the consolidated financial statements of the Borrower and its Subsidiaries, assuming such Permitted Acquisition or conversion, and all other Permitted Acquisitions or conversions that have been consummated during the period, and any Indebtedness or other liabilities repaid in connection therewith had been consummated and incurred or repaid at the beginning of such period (and assuming that such Indebtedness to be incurred bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the interest rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination); provided that, so long as such actions are initiated during such Post-Acquisition Period or such costs are incurred during such Post-Acquisition Period, as applicable, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, it may be assumed that such cost savings will be realizable during the entirety of such Test Period, or such additional costs, as applicable, will be incurred during the entirety of such Test Period provided further that any add-backs and adjustments under this definition, together with the add-backs and adjustments made pursuant to clauses (v) and (viii) of the definition of “Consolidated EBITDA”, shall not exceed 25% of Consolidated EBITDA in the aggregate for all add-backs and adjustments for any Test Period (calculated after giving effect to such add-backs and adjustments).

 

“Pro Forma Basis” and “Pro Forma Effect” mean, with respect to compliance with any test hereunder for an applicable period of measurement, that to the extent applicable, the Pro Forma Adjustment shall have been made; provided that, without limiting the application of the Pro Forma Adjustment, the foregoing pro forma adjustments may be applied to any such test solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to events (including operating expense reductions) that are (as determined by the Borrower in good faith) (i) (x) directly attributable to such transaction, (y) expected to have a continuing impact on the Borrower and its Restricted Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of Pro Forma Adjustment.

 

“Proposed Discounted Prepayment Amount” has the meaning specified in Section 2.03(d)(ii).

 

“Public Lender” has the meaning specified in Section 6.02.

 

“Published Rate” means the rate of interest published each Business Day in the Wall Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for a one month period (or, if no such rate is published therein for any reason, then the Published Rate shall be the LIBOR for a one month period as published in another publication selected by Administrative Agent).

 

“Qualified Equity Interests” means any Equity Interests of the Borrower, in each case, that are not Disqualified Equity Interests.

 

“Qualifying Lenders” has the meaning specified in Section 2.03(d)(iv).

 

“Qualifying Loans” has the meaning specified in Section 2.03(d)(iv).

 

“Recipient” has the meaning specified in Section 10.08.

 

 

“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not USD LIBOR, the time determined by the Administrative Agent (at the direction of the Required Lenders) in its reasonable discretion.

 

“Refinancing” means the indefeasible payment in full of certain indebtedness, liabilities and obligations under the Existing Company Term Loan Agreement such that, upon such payment, there shall not exceed $5,000,000 of such indebtedness, liabilities and obligations outstanding under the Existing Company Term Loan Agreement.

 

“Register” has the meaning specified in Section 10.07(d).

 

“Reinvestment Yield” means, with respect to the Called Principal of any Loan, 50 basis points (one-half of one percent) over the yield to maturity implied by (i) the yields reported as of 10:00 a.m., New York City time, on the second Business Day preceding the repayment or prepayment date with respect to such Called Principal, on the display designated as “Page PX1” on the Bloomberg Financial Market Service (“Bloomberg”) (or such other display as may replace Page PX1 on Bloomberg) or, if Page PX1 (or such other display as may replace Page PX1 on Bloomberg ) is unavailable, “Page 678” of the Telerate Access Service (or such other display as may replace Page 678 of the Telerate Access Service) for the most recently issued actively traded U.S. Treasury securities having a maturity equal to the Remaining Life of such Called Principal as of such repayment or prepayment date, or (ii) if such yields are not reported as of such time or the yields reported as of such time are not ascertainable (including by way of interpolation), the Treasury Constant Maturity Series Yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the repayment or prepayment date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (519) (or any comparable successor publication) for actively traded U.S. Treasury securities having a constant maturity equal to the Remaining Life of such Called Principal as of such repayment or prepayment date. Such implied yield will be determined, if necessary, by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between (1) the actively traded U.S. Treasury security with the maturity closest to and greater than such Remaining Life and (2) the actively traded U.S. Treasury security with the maturity closest to and less than such Remaining Life. The Reinvestment Yield shall be rounded to two decimal places.

 

“Rejection Notice” has the meaning specified in Section 2.03(b)(v).

 

“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection, migration or leaching on, into or through the Environment or into, from or through any building, structure or facility.

 

“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.

 

“Remaining Life” means, with respect to any Called Principal, the time (calculated to the nearest one-twelfth year) that will elapse between the date on which such Called Principal is to be repaid and the Make-Whole Expiry Date.

 

“Remaining Scheduled Payments” means, with respect to the Called Principal of any Loan, all payments of interest in respect of such Called Principal that would be due after the repayment or prepayment date through the Make-Whole Expiry Date with respect to such Called Principal if no payment of such Called Principal were made.

 

“Repayment Fee” has the meaning set forth in Section 2.03(e).

 

“Reportable Compliance Event” means that any Covered Entity becomes a Sanctioned Person, or is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its operations is in actual or probable violation of any Anti-Terrorism Law.

 

“Reportable Event” means, with respect to any Pension Plan, any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived.

 

“Request for Credit Extension” means with respect to a Borrowing, conversion or continuation of Term Loans, a Committed Loan Notice.

 

“Required Lenders” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Outstandings and (b) aggregate unused Term Commitments; provided that (i) to the same extent set forth in Section 10.07(j) with respect to determination of Required Lenders, the Loans of any Affiliated Lender shall in each case be excluded for purposes of making a determination of Required Lenders and (ii) the unused Term Commitment and the portion of the Total Outstandings held or deemed held by any Defaulting Lender shall be excluded for all purposes of making a determination of Required Lenders; provided, further, that Required Lenders shall at all times include Oaktree and its Affiliates (to the extent that Oaktree and its Affiliates are Lenders under the Facilities at such time).

 

 

“Reserve Percentage” means as of any day the maximum effective percentage in effect on such day as prescribed by the FRB (or any successor) for determining the reserve requirements applicable to the Lenders (including supplemental, marginal and emergency reserve requirements) with respect to eurocurrency funding (currently referred to as “Eurocurrency Liabilities”).

 

“Responsible Officer” means the chief executive officer, president, any vice president, chief financial officer, treasurer, assistant treasurer, or other similar officer or director of a Loan Party (or any other officer for whom Administrative Agent has received a satisfactory background check) and, as to any document delivered on the Closing Date, any secretary or assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

“Restricted Casualty Event” has the meaning specified in Section 2.03(b)(vi).

 

“Restricted Disposition” has the meaning specified in Section 2.03(b)(vi).

 

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest in the Borrower or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination by the Borrower or any Restricted Subsidiary of any such Equity Interest, or on account of any return of capital to the holders of Equity Interests of the Borrower.

 

“Restricted Subsidiary” means any Subsidiary of the Borrower other than an Unrestricted Subsidiary.

 

“RideNow Permitted Holders” means William Coulter and Mark Tkach and their respective spouses, children, grandchildren and other immediate family members and personal representatives of their estates or trusts of which they or their respective spouses, children, grandchildren, or other immediate family members are the sole beneficiaries (in each case, directly or indirectly, including through one or more investment vehicles).

 

“RumbleOn Finance” means RumbleOn Finance, LLC, a Nevada limited liability company.

 

“RumbleOn Permitted Holders” means Marshall Chesrown and Steven Berrard and their respective spouses, children, grandchildren and other immediate family members and personal representatives and trustees of their estates or trusts of which they or their respective spouses, children, grandchildren, or other immediate family members are the sole beneficiaries (in each case, directly or indirectly, including through one or more investment vehicles including, without limitation Berrard Holdings Limited Partnership).

 

“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and any successor thereto.

 

“SBA” means the U.S. Small Business Administration.

 

“Sale Leaseback” means any transaction or series of related transactions pursuant to which the Borrower or any of its Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.

 

“Sanctioned Country” means a country subject to a sanctions program maintained under any Anti-Terrorism Law.

 

“Sanctioned Person” means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law.

 

“SEC” means the Securities and Exchange Commission or any Governmental Body succeeding to any of its principal functions.

 

 

“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Supplemental Administrative Agent and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.01(b).

 

“Securities Account” has the meaning specified in the UCC.

 

“Securities Act” means the Securities Act of 1933.

 

“Security Agreement” means, collectively, the Security Agreement executed by the Loan Parties party thereto on the Closing Date substantially in the form of Exhibit F as supplemented by any Security Agreement Supplement executed and delivered pursuant to Section 6.10.

 

“Security Agreement Supplement” means a supplement to any Security Agreement as contemplated by such Security Agreement.

 

“Sole Lead Arranger” means Oaktree.

 

“SOFR” means with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day.

 

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

 

“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

 

“Sold Entity or Business” has the meaning specified in the definition of the term “Consolidated EBITDA.”

 

“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (i) the fair value of the property of such Person is greater than the total amount of debts and liabilities, contingent, subordinated or otherwise, of such Person, (ii) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the liability of such Person on its debts as they become absolute and matured, (iii) such Person will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as they become absolute and matured and (iv) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital; provided that the amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

“SPC” has the meaning specified in Section 10.07(h).

 

“Specified Acquisition Agreement Representations” means the representations made by or with respect to the Target Companies in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower has the right (determined without regard to any notice provisions but taking into account any applicable cure provisions) to terminate its obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement or the failure of such representations to be accurate results in a failure of a condition precedent to the Borrower’s obligations to consummate the Acquisition pursuant to the Acquisition Agreement.

 

“Specified Competitors” means (i) such Persons that have been specified in writing to the Administrative Agent by the Borrower prior to the Closing Date, (ii) competitors of the Borrower and its Subsidiaries that have been specified in writing to the Administrative Agent from time to time by the Borrower and (iii) any of their Affiliates (other than in the case of clause (ii), Affiliates that are bona fide debt funds) that are (x) identified in writing from time to time to the Administrative Agent by the Borrower or (y) clearly identifiable on the basis of such Affiliates’ name. The schedule of Specified Competitors shall be maintained with the Administrative Agent and may be communicated to a Lender upon request to the Administrative Agent (with concurrent notice to the Borrower) but shall not otherwise be posted or made available to Lenders.

 

 

“Specified Debt” means Indebtedness for borrowed money (x) that is contractually subordinated in right of payment to the Obligations expressly by its terms, (y) that is secured by all or substantially all of the Collateral on a junior lien basis to the Liens securing the Obligations or (z) unsecured Indebtedness incurred pursuant to Section 7.03(o), in each case, having an outstanding principal amount in excess of $5,000,000 (in each case, other than Indebtedness among the Borrower and its Restricted Subsidiaries).

 

“Specified Debt Documents” means any agreement, indenture or instrument pursuant to which any Specified Debt is issued, in each case as amended to the extent permitted under the Loan Documents.

 

“Specified Event of Default” has the meaning assigned to it in Section 8.02.

 

“Specified Representations” means the representations and warranties of the Borrower set forth in Sections 5.01(a) (solely as it relates to the Borrower, the Merger Subs and the Target Companies), 5.01(b)(ii), 5.02(a) (related to the entering into and performance of the Loan Documents and the incurrence of the extensions of credit thereunder), 5.02(b)(i) (related to the entering into and performance of the Loan Documents and the incurrence of the extensions of credit thereunder), 5.02(b)(iv), 5.04, 5.12, 5.15, 5.16 (subject to the proviso to Section 4.01(a)(iv)) and 5.18.

 

“Standard Consumer Warehouse Undertakings” means representations, warranties, covenants, Consumer Warehouse Repurchase Obligations and indemnities entered into by any Consumer Warehouse Subsidiary that are customary in a consumer warehouse financing, including those relating to the servicing of the assets of a Consumer Warehouse Subsidiary.

 

“Subrogation Rights” has the meaning assigned to it in Section 9.15(c).

 

“Subsidiary” of a Person means a corporation, company, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.

 

“Subsidiary Guarantor” means, collectively, the Subsidiaries of the Borrower that are Guarantors.

 

“Supermajority Lenders” means, as of any date of determination, Lenders holding more than 66.67% of the sum of the (a) Total Outstandings and (b) aggregate unused Term Commitments; provided that (i) to the same extent set forth in Section 10.07(j) with respect to determination of Supermajority Lenders, the Loans of any Affiliated Lender shall in each case be excluded for purposes of making a determination of Supermajority Lenders and (ii) the unused Term Commitment and the portion of the Total Outstandings held or deemed held by any Defaulting Lender shall be excluded for all purposes of making a determination of Supermajority Lenders; provided, further, that Supermajority Lenders shall at all times include Oaktree and its Affiliates (to the extent that Oaktree and its Affiliates are Lenders under the Facilities at such time).

 

“Supplemental Administrative Agent” has the meaning specified in Section 9.13(a) and “Supplemental Administrative Agents” shall have the corresponding meaning.

 

“Survey” means a survey of any Mortgaged Property (and all improvements thereon) which is (a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where such Mortgaged Property is located, (ii) dated (or redated) not earlier than six months prior to the date of delivery thereof unless there shall have occurred within six months prior to such date of delivery any exterior construction on the site of such Mortgaged Property or any easement, right of way or other interest in the Mortgaged Property has been granted or become effective through operation of law or otherwise with respect to such Mortgaged Property which, in either case, can be depicted on a survey, in which events, as applicable, such survey shall be dated (or redated) after the completion of such construction or if such construction shall not have been completed as of such date of delivery, not earlier than 20 days prior to such date of delivery, or after the grant or effectiveness of any such easement, right of way or other interest in the Mortgaged Property, (iii) certified by the surveyor (in a manner reasonably acceptable to the Administrative Agent) to the Administrative Agent, the Collateral Agent and the Title Company, (iv) complying in all respects with the minimum detail requirements of the American Land Title Association as such requirements are in effect on the date of preparation of such survey, (v) sufficient for the Title Company to remove all standard survey exceptions from the Mortgage Policy relating to such Mortgaged Property and issue the endorsements of the type required by paragraph (f) of the definition of Collateral and Guarantee Requirement and (vi) otherwise reasonably acceptable to the Administrative Agent.

 

 

“Surviving Indebtedness” means Indebtedness of the Borrower or any of its Subsidiaries outstanding immediately after giving effect to the Refinancing.

 

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark to market value(s) for such Swap Contracts, as determined by a recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender) in accordance with the terms thereof and in accordance with customary methods for calculating mark-to-market values under similar arrangements by a recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

 

“Target Companies” means, collectively, the Merged Entities, the Transferred Entities and their respective Subsidiaries.

 

“Taxes” means all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges imposed by any Governmental Body, including additions to tax, penalties and interest with respect thereto.

 

“Term Borrowing” means a Borrowing in respect of a Class of Term Loans.

 

“Term Commitments” means an Initial Term Commitment, Delayed Draw Term Commitment or a commitment in respect of any Incremental Term Loan or any combination thereof, as the context may require.

 

“Term Lender” means, at any time, any Lender that has a Term Commitment or a Term Loan at such time.

 

“Term Loans” means the Initial Term Loans, the Delayed Draw Term Loans and the Incremental Term Loans.

 

“Term Note” means a promissory note of the Borrower payable to any Term Lender or its registered assigns, in substantially the form of Exhibit B hereto with appropriate insertions, evidencing the aggregate Indebtedness of the Borrower to such Term Lender resulting from any Class of Term Loans made by such Term Lender.

 

“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

 

“Test Period” means, at any date of determination, the most recently completed four consecutive fiscal quarters of the Borrower ending on or prior to such date for which financial statements have been or are required to be delivered pursuant to Section 6.01(a) or 6.01(b).

 

“Threshold Amount” means $5,000,000.

 

“Title Company” means any title insurance company as shall be retained by Borrower to issue the Mortgage Policies and reasonably acceptable to the Administrative Agent.

 

“Total Outstandings” means the aggregate Outstanding Amount of all Loans.

 

“Transactions” means, collectively, (a) the Equity Contribution, (b) the Acquisition, (c) the funding of the Initial Term Loans hereunder, (d) the execution and delivery of the Loan Documents, (e) the Refinancing, (f) any other transactions in connection with the foregoing consummated on the Closing Date and (g) the payment of Transaction Expenses.

 

 

“Transaction Expenses” means any fees or expenses incurred or paid by the Borrower or any Restricted Subsidiary in connection with the Transaction, this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby in connection therewith.

 

“Transferred Entities” means, collectively, BJ Motorsports, LLC, a Nevada limited liability company, YSA Motorsports LLC, an Arizona limited liability company, Ride Now, LLC, a Nevada limited liability company, Ride Now 5 Allen LLC, a Texas limited liability company, DHD Allen, LLC, a Texas limited liability company, Coyote Motorsports-Allen, LTD, a Texas limited partnership, DHD Garland, LLC, a Texas limited liability company, Coyote Motorsports-Garland, LTD, a Texas limited partnership, IOT Motorcycles, LLC, an Arizona limited liability company, East Valley Motorcycles, LLC, an Arizona limited liability company, Ride Now-Carolina, LLC, a North Carolina limited liability company, Top Cat Enterprises, LLC, an Arizona limited liability company, J.J.B. Properties, LLC, an Arizona limited liability company, RN-Gainesville, LLC, a Florida limited liability company, Ride USA, LLC, a Florida limited liability company, RHND Ocala, LLC, a Florida limited liability company, RNMC Daytona, LLC, a Florida limited liability company, TC Motorcycles LLC, a Florida limited liability company, ECHD Motorcycles, LLC, a California limited liability company, Glendale Motorcycles, LLC, an Arizona limited liability company, Ride Now Tri-Cities LLC, a Washington limited liability company, Bayou Motorcycles, LLC, a Louisiana limited liability company, and RNKC LLC, a Kansas limited liability company.

 

“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.

 

“UK Bail-In Legislation” means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 BRRD) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).

 

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

 

“Unaudited Financial Statements” means (i) the unaudited consolidated balance sheets of Borrower and its Subsidiaries and the unaudited combined balance sheet of the Target Companies as of the last day of the fiscal quarter ending March 31, 2021 and (ii) the related unaudited consolidated or combined, as applicable statements of income and changes in cash flows of the Borrower and its Subsidiaries and Target Companies for the fiscal quarter ending March 31, 2021.

 

“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

 

“United States” and “U.S.” mean the United States of America.

 

“United States Tax Compliance Certificate” has the meaning specified in Section 3.01.

 

“Unrestricted Subsidiary” means (i) each Subsidiary of the Borrower listed on Schedule 1.01B, (ii) any Subsidiary of the Borrower designated by the Borrower as an Unrestricted Subsidiary pursuant to Section 6.13 subsequent to the date hereof and (iii) any Subsidiary of an Unrestricted Subsidiary. As of the Closing Date, the Borrower does not have any Unrestricted Subsidiaries.

 

“USA PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time.

 

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (ii) the then outstanding principal amount of such Indebtedness.

 

“Wholly-Owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or more wholly-owned Subsidiaries of such Person.

 

 

“Withdrawal Liability” means the liability of a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

“Withholding Agent” means any Loan Party, the Administrative Agent and, in the case of any U.S. federal withholding tax, any other withholding agent, if applicable.

 

“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, or (b) with respect to any UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers and any similar or analogous powers under that UK Bail-In Legislation.

 

Section 1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b) (i) The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

 

(ii) Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.

 

(iii) The term “including” is by way of example and not limitation.

 

(iv) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

 

(c) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including.”

 

(d) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

Section 1.03 Accounting Terms.

 

(a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, applied in a manner consistent with that used in preparing the Audited Financial Statements of the Borrower, except as otherwise specifically prescribed herein.

 

(b) Where reference is made to “the Borrower and its Restricted Subsidiaries on a consolidated basis” or similar language, such consolidation shall not include any Subsidiaries of the Borrower other than Restricted Subsidiaries.

 

(c) In the event that the Borrower elects to prepare its financial statements in accordance with IFRS and such election results in a change in the method of calculation of financial covenants, standards or terms (collectively, the “Accounting Changes”) in this Agreement, the Borrower and the Administrative Agent agree to enter into good faith negotiations in order to amend such provisions of this Agreement (including the levels applicable herein to any computation of the Consolidated Total Leverage Ratio, the Consolidated Total Net Leverage Ratio and the Consolidated Senior Secured Net Leverage Ratio) so as to reflect equitably the Accounting Changes with the desired result that the criteria for evaluating the Borrower’s financial condition shall be substantially the same after such change as if such change had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed in accordance with GAAP (as determined in good faith by a Responsible Officer of the Borrower) (it being agreed that the reconciliation between GAAP and IFRS used in such determination shall be made available to Lenders) as if such change had not occurred.

 

 

Section 1.04 Rounding. Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

Section 1.05 References to Agreements, Laws, Etc. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

 

Section 1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

Section 1.07 Timing of Payment or Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day.

 

Section 1.08 Currency Equivalents Generally.

 

(a) Notwithstanding the foregoing, for purposes of determining compliance with Sections 7.01, 7.02 and 7.03 with respect to any amount of Indebtedness or Investment in a currency other than Dollars, no Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Lien, Indebtedness or Investment is incurred.

 

(b) For purposes of determining compliance under Sections 7.02, 7.05 and 7.06, any amount in a currency other than Dollars will be converted to Dollars in a manner consistent with that used in calculating net income in the Borrower’s annual financial statements delivered pursuant to Section 6.01(a); provided, however, that the foregoing shall not be deemed to apply to the determination of any amount of Indebtedness.

 

(c) For purposes of determining compliance with any restriction on the incurrence of Indebtedness, the Dollar equivalent of the principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased.

 

Section 1.09 Certain Calculations and Tests. Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (including, without limitation, pro forma compliance with any Consolidated Senior Secured Net Leverage Ratio test, any Consolidated Total Leverage Ratio test and/or Consolidated Total Net Leverage Ratio test) (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with any such financial ratio or test (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts (and any cash proceeds thereof) shall be disregarded in the calculation of the financial ratio or test applicable to the Incurrence-Based Amounts in connection with such substantially concurrent incurrence, except that incurrences of Indebtedness and Liens constituting Fixed Amounts shall be taken into account for purposes of Incurrence-Based Amounts other than Incurrence-Based Amounts contained in Section 7.01 or Section 7.03.

 

Section 1.10 Divisions. Any reference herein or in any other Loan Document to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a Person, or an allocation of assets to a series of a Person (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale or transfer or similar term, as applicable to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder and under any other Loan Document (and each division of any limited liability company that is a Subsidiary, Affiliate, joint venture or any other like term shall also constitute such a separate Person or entity hereunder or any other Loan Document).

 

 

Section 1.11 Rates; LIBOR Notification. The interest rate on Eurocurrency Rate Loans is determined by reference to the Eurocurrency Screen Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. On March 5, 2021, the U.K. Financial Conduct Authority (“FCA”) publicly announced that: immediately after December 31, 2021, publication of the 1-week and 2-month U.S. Dollar LIBOR settings will permanently cease; immediately after June 30, 2023, publication of the overnight and 12-month U.S. Dollar LIBOR settings will permanently cease; and immediately after June 30, 2023, the 1-month, 3-month and 6-month U.S. Dollar LIBOR settings will cease to be provided or, subject to the FCA’s consideration of the case, be provided on a synthetic basis and no longer be representative of the underlying market and economic reality they are intended to measure and that representativeness will not be restored. There is no assurance that dates announced by the FCA will not change or that the administrator of LIBOR and/or regulators will not take further action that could impact the availability, composition, or characteristics of LIBOR or the currencies and/or tenors for which LIBOR is published. Each party to this agreement should consult its own advisors to stay informed of any such developments. Public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. Upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, Section 3.02 provides a mechanism for determining an alternative rate of interest. The Administrative Agent will promptly notify the Borrower, pursuant to Section 3.02, of any change to the reference rate upon which the interest rate on Eurocurrency Rate Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “Eurocurrency Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to Section 3.02, whether upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to Section 3.02, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the Eurocurrency Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.

 

ARTICLE II

 

The Commitments and Credit Extensions

 

Section 2.01 The Loans. Subject to the terms and conditions set forth herein:

 

(a) The Initial Term Borrowings. Each Initial Term Lender severally agrees to make to the Borrower a single loan, in Dollars, in a principal amount equal to such Initial Term Lender’s Initial Term Commitment on the Closing Date. Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Initial Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

 

(b) The Delayed Draw Term Borrowings. After the Closing Date, each Delayed Draw Term Lender severally agrees to make to the Borrower one or more loans, in Dollars, in a principal amount equal to such Delayed Draw Term Lender’s Delayed Draw Term Commitment from time to time prior to the Delayed Draw Term Loan Commitment Termination Date; provided that if all of the aggregate outstanding principal amount of the Initial Term Loans and the Delayed Draw Term Loans are paid in full as a result of any optional prepayments pursuant to Section 2.03(a), the unfunded amount of the Delayed Draw Term Commitment of each Delayed Draw Term Lender shall terminate; provided further, that the Borrower shall be permitted to make no more than five (5) borrowings of Delayed Draw Term Loans hereunder. Each Delayed Draw Term Loan shall be in a minimum principal amount of the lesser of (i) $20,000,000 and (ii) the remaining undrawn amount of the Delayed Draw Term Commitment as of the applicable Delayed Draw Funding Date. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed. Delayed Draw Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

 

Section 2.02 Borrowings, Conversions and Continuations of Loans.

 

(a) Each Term Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable written notice, appropriately completed and signed by a Responsible Officer of the Borrower, to the Administrative Agent. Each such notice must be received by the Administrative Agent substantially in the form attached hereto as Exhibit A, (i) in the case of a Eurocurrency Rate Loan, not later than noon, New York City time, three (3) Business Days before the date of the proposed Borrowing or (ii) in the case of a Base Rate Loan, not later than noon, New York City time, on the Business Day immediately preceding the proposed Borrowing; provided that, with respect to a Borrowing of Delayed Draw Term Loans, notice must be received not later than noon, New York City time, seven (7) Business Days before the date of the proposed Borrowing. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of the Borrowing Minimum or a whole multiple of the Borrowing Multiple in excess thereof. Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of the Borrowing Minimum or a whole multiple of the Borrowing Multiple in excess thereof. Each Committed Loan Notice shall specify (i) whether the Borrower is requesting a Term Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the Class and principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.02(b). If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or fail to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as Base Rate Loans. Any such automatic conversion or continuation shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. For the avoidance of doubt, the Borrower and Lenders acknowledge and agree that any conversion or continuation of an existing Loan shall be deemed to be a continuation of that Loan with a converted interest rate methodology and not a new Loan.

 

 

(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Applicable Percentage of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Appropriate Lender of the details of any automatic conversion or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender shall make (or cause its Applicable Lending Office to make) the amount of its Loan available to the Administrative Agent by wire transfer in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m., New York City time on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower as designated in the Committed Loan Notice in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower maintained with the Administrative Agent and designated by the Borrower in the Committed Loan Notice with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.

 

(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan unless the Borrower pays the amount due, if any, under Section 3.04 in connection therewith. During the existence of an Event of Default, the Required Lenders may require that (i) no Loans may be converted to or continued as Eurocurrency Rate Loans, and (ii) unless repaid, each Eurocurrency Rate Loan shall be converted to a Base Rate Loan at the end of the Interest Period applicable thereto.

 

(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. The determination of the Eurocurrency Rate by the Administrative Agent shall be conclusive in the absence of manifest error.

 

(e) Anything in clauses (a) to (d) above to the contrary notwithstanding, after giving effect to all Term Borrowings, all conversions of Term Loans from one Type to the other, and all continuations of Term Loans as the same Type, there shall not be more than five (5) Interest Periods in effect at any time for all Borrowings of Eurocurrency Rate Loans.

 

(f) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing, or, in the case of any Borrowing of Base Rate Loans, prior to 1:00 p.m., New York City time, on the date of such Borrowing, that such Lender will not make available to the Administrative Agent such Lender’s Applicable Percentage of such Borrowing, the Administrative Agent may assume that such Lender has made such Applicable Percentage available to the Administrative Agent on the date of such Borrowing in accordance with clause (b) above, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available, then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, each of such Lender and the Borrower severally agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent at (a) in the case of the Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing (but shall not be required to make any payment pursuant to Section 3.04 with regard to such repayment) and (b) in the case of such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in accordance with the foregoing. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this Section 2.02(f) shall be conclusive in the absence of demonstrable error. If the Borrower and such Lender shall both pay all or any portion of the principal amount in respect of such Borrowing or interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such Borrowing or interest paid by the Borrower for such period. If such Lender (but not Borrower) pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

 

Section 2.03 Prepayments.

 

(a) Optional Prepayments. (i) The Borrower may, upon written notice to the Administrative Agent by the Borrower, at any time or from time to time voluntarily prepay any Borrowing of any Class in whole or in part without premium or penalty (except as set forth in Section 2.03(e)); provided that (1) such notice must be received by the Administrative Agent not later than 1:00 p.m., New York City time (A) three (3) Business Days prior to any date of prepayment of Eurocurrency Rate Loans and (B) one Business Day prior to the date of prepayment of Base Rate Loans and (2) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000, or a whole multiple of the Borrowing Multiple in excess thereof, or the entire principal amount of such Borrowing then outstanding. Each such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.04. Each prepayment of the Loans pursuant to this Section 2.03(a) shall be applied to the installments thereof as directed by the Borrower (it being understood and agreed that if the Borrower does not so direct at the time of such prepayment, such prepayment shall be applied against the scheduled repayments of Term Loans of the relevant Class under Section 2.05 in the indirect order of maturity) and shall be paid to the Appropriate Lenders in accordance with their respective Applicable Percentages.

 

 

(ii) Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of prepayment under Section 2.03(a) if such prepayment would have resulted from a refinancing of the applicable Facility, which refinancing shall not be consummated or shall otherwise be delayed.

 

(b) Mandatory Prepayments.

 

(i) Within seven (7) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans equal to (A) 50% of the amount equal to Excess Cash Flow, if any, for the fiscal year covered by such financial statements (commencing with the first full fiscal year ending after the Closing Date), minus (B)  all voluntary prepayments (including pursuant to debt buybacks made by the Borrower in an amount equal to the discounted amount actually paid in respect thereof) of Term Loans (but excluding any voluntary prepayments financed the proceeds of an incurrence or issuance of other Indebtedness of the Borrower or its Subsidiaries) prior to the making of such Excess Cash Flow payment (including payments made after the end of the fiscal year covered by the relevant financial statements); provided that prepayments pursuant to this Section 2.03(b)(i) shall only be required if the amount of Excess Cash Flow for such fiscal year is greater than $2,500,000.

 

(ii) (A) If following the Closing Date (x) the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d) (to the extent constituting a Disposition to a Loan Party), (e), (f), (g), (i), (j), (m) and (n), or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by the Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrower shall make a prepayment, in accordance with Section 2.03(b)(ii)(C), of an aggregate principal amount of Term Loans equal to 100% (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that no such prepayment shall be required pursuant to this Section 2.03(b)(ii)(A) (I) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 2.03(b)(ii)(B) or (II) until the aggregate amount of Net Cash Proceeds not reinvested in accordance with Section 2.03(b)(ii)(B) within the time periods set forth therein and not previously applied to such a prepayment exceeds $1,000,000 for any single Disposition or series of related Dispositions or $2,500,000 in the aggregate in any fiscal year.

 

(B) With respect to any Net Cash Proceeds realized or received with respect to any Disposition (other than any Disposition specifically excluded from the application of Section 2.03(b)(ii)(A)) or any Casualty Event, at the option of the Borrower, the Borrower may reinvest an amount equal to all or any portion of such Net Cash Proceeds in assets useful for its business (other than working capital and investments in cash and Cash Equivalents), including, for the avoidance of doubt, Capitalized Leases or in Permitted Acquisitions, within twelve (12) months following receipt of such Net Cash Proceeds; provided that (i) so long as an Event of Default shall have occurred and be continuing, the Borrower shall not be permitted to make any such reinvestments (other than pursuant to a commitment that the Borrower entered into at a time when no Event of Default is continuing) and (ii) if any Net Cash Proceeds are not so reinvested by the deadline specified above, as applicable, or if any such Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to the Asset Percentage of any such Net Cash Proceeds above the threshold set forth in Section 2.03(b)(ii)(A)(II) shall be applied, in accordance with Section 2.03(b)(ii)(C), to the prepayment of the Term Loans as set forth in this Section 2.03.

 

(C) On each occasion that the Borrower must make a prepayment of the Term Loans pursuant to this Section 2.03(b)(ii), the Borrower shall, within five (5) Business Days after the date of realization or receipt of such Net Cash Proceeds in the minimum amount specified above (or, in the case of prepayments required pursuant to Section 2.03(b)(ii)(B), within five (5) Business Days of the deadline specified in clause (i) or (ii) thereof, as applicable, or of the date the Borrower reasonably determines that such Net Cash Proceeds are no longer intended to be or cannot be so reinvested, as the case may be), make a prepayment, in accordance with Section 2.03(b)(v) below, of the principal amount of Term Loans in an amount equal to the Asset Percentage of such Net Cash Proceeds realized or received above the threshold set forth in Section 2.03(b)(ii)(A)(II).

 

(iii) If, following the Closing Date, (x) the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is one (1) Business Day after the receipt of such Net Cash Proceeds and (y) the Borrower or any Restricted Subsidiary consummates any issuance of Equity Interests (other than under equity incentive plans or shares issued as equity compensation), whether private or public, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans equal to 50% of all Net Cash Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds; provided, however, that with respect to this clause (y), the Borrower or such Restricted Subsidiary shall not be required to prepay the Term Loans so long as (A) the Borrower uses such Net Cash Proceeds to finance Permitted Acquisitions or to fund working capital or (B) the Borrower is in compliance, on a Pro Forma Basis, with the Financial Covenants.

 

 

(iv) Each prepayment of Term Loans pursuant to this Section 2.03(b) shall be applied, first, to the installments thereof in the direct order of maturity for the next eight scheduled payments pursuant to Section 2.05 following the applicable prepayment event and, second, to the remaining installments thereof pro rata; provided that any mandatory prepayment pursuant to Section 2.03 shall be applied on a pro rata basis to the Term Loans and, except to the extent a lesser prepayment is required pursuant to the applicable Incremental Facility Amendment with respect to any applicable Class of Incremental Term Loans, any Incremental Term Loans. Each such prepayment of any Class of Term Loans shall be paid to the Lenders in accordance with their respective Applicable Percentages subject to clause (v) of this Section 2.03(b).

 

(v) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i), (ii), and (iii) of this Section 2.03(b) prior to 1:00 p.m. at least five (5) Business Days of the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Applicable Percentage of the prepayment with respect to any Class of Term Loans. Each Appropriate Lender may reject all or a portion of its Applicable Percentage of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (i), (ii) or (iii) of this Section 2.03(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. two (2) Business Days prior to such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory prepayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans.

 

(vi) Notwithstanding any other provision of this Section 2.03(b), (i) to the extent that any or all of the Net Cash Proceeds of any Disposition by a Restricted Subsidiary that is a Foreign Subsidiary otherwise giving rise to a prepayment pursuant to Section 2.03(b)(ii) (a “Restricted Disposition”), the Net Cash Proceeds of any Casualty Event of a Restricted Subsidiary that is a Foreign Subsidiary (a “Restricted Casualty Event”), or Excess Cash Flow attributable to a Foreign Subsidiary would be prohibited or delayed by applicable local law from being distributed or otherwise transferred to the Borrower, the realization or receipt of the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be taken into account in measuring the Borrower’s obligation to repay Term Loans at the times provided in Section 2.03(b)(i), or the Borrower shall not be required to make a prepayment at the time provided in Section 2.03(b)(ii), as the case may be, for so long, but only so long, as the applicable local law will not permit such distribution or transfer (the Borrower hereby agreeing to cause the applicable Restricted Subsidiary to promptly take all commercially reasonable actions available under the applicable local law to permit such repatriation), and once distribution or transfer of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, the amount of such Net Cash Proceeds or Excess Cash Flow permitted to be distributed or transferred (net of additional taxes payable or reserved against as a result thereof) will be promptly (and in any event not later than two (2) Business Days after such distribution or transfer is permitted) taken into account in measuring the Borrower’s obligation to repay the Term Loans pursuant to this Section 2.03(b) to the extent provided herein and (ii) to the extent that the Borrower has determined in good faith (as set forth in a written notice delivered to the Administrative Agent) that distribution or other transfer of any or all of the Net Cash Proceeds of any Restricted Disposition or any Restricted Casualty Event or Excess Cash Flow attributable to a Foreign Subsidiary would have a material adverse tax consequence (taking into account any foreign tax credit or benefit received in connection with such repatriation), the amount of the Net Cash Proceeds or Excess Cash Flow so affected shall not be taken into account in measuring the Borrower’s obligation to repay Term Loans pursuant to this Section 2.03(b).

 

(c) Interest, Funding Losses, Etc. All prepayments under this Section 2.03 shall be accompanied by all accrued interest thereon, together with, in the case of any such prepayment of a Eurocurrency Rate Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan pursuant to Section 3.04.

 

Notwithstanding any of the other provisions of this Section 2.03, so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency Rate Loans is required to be made under this Section 2.03 prior to the last day of the Interest Period therefor, in lieu of making any payment pursuant to this Section 2.03 in respect of any such Eurocurrency Rate Loan prior to the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit with the Administrative Agent the amount of any such prepayment otherwise required to be made hereunder until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.03. Such deposit shall constitute cash collateral for the Eurocurrency Rate Loans to be so prepaid, provided that the Borrower may at any time direct that such deposit be applied to make the applicable payment required pursuant to this Section 2.03.

 

 

(d) Discounted Voluntary Prepayments.

 

(i) Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.11) or any other Loan Document, the Borrower shall have the right at any time and from time to time to prepay one or more Classes of Term Loans to the Lenders at a discount to the par value of such Loans and on a non pro rata basis (each, a “Discounted Voluntary Prepayment”) pursuant to the procedures described in this Section 2.03(d), provided that (A) any Discounted Voluntary Prepayment shall be offered to all Term Lenders of such Class on a pro rata basis, (B) after giving effect to the Discounted Voluntary Prepayment, the aggregate Outstanding Amount of all Term Loans that are held by Affiliated Lenders (other than Affiliated Debt Funds) shall not exceed 25% of the aggregate Outstanding Amount of the Term Loans then outstanding and (C) the Borrower shall deliver to the Administrative Agent, together with each Discounted Prepayment Option Notice, a certificate of a Responsible Officer of the Borrower (1) stating that no Event of Default (in each case, with respect to the Borrower) has occurred and is continuing or would result from the Discounted Voluntary Prepayment, (2) stating that each of the conditions to such Discounted Voluntary Prepayment contained in this Section 2.03(d) has been satisfied and (3) specifying the aggregate principal amount of Term Loans of any Class offered to be prepaid pursuant to such Discounted Voluntary Prepayment.

 

(ii) To the extent the Borrower seeks to make a Discounted Voluntary Prepayment, the Borrower will provide written notice to the Administrative Agent substantially in the form of Exhibit G hereto (each, a “Discounted Prepayment Option Notice”) that the Borrower desires to prepay Term Loans of one or more specified Classes in an aggregate principal amount specified therein by the Borrower (each, a “Proposed Discounted Prepayment Amount”), in each case at a discount to the par value of such Loans as specified below. The Proposed Discounted Prepayment Amount of any Loans shall not be less than $5,000,000. The Discounted Prepayment Option Notice shall further specify with respect to the proposed Discounted Voluntary Prepayment (A) the Proposed Discounted Prepayment Amount for Loans to be prepaid, (B) a discount range (which may be a single percentage) selected by the Borrower with respect to such proposed Discounted Voluntary Prepayment equal to a percentage of par of the principal amount of the Loans to be prepaid (the “Discount Range”), and (C) the date by which Lenders are required to indicate their election to participate in such proposed Discounted Voluntary Prepayment, which shall be at least five Business Days from and including the date of the Discounted Prepayment Option Notice (the “Acceptance Date”).

 

(iii) Upon receipt of a Discounted Prepayment Option Notice, the Administrative Agent shall promptly notify each applicable Lender thereof. On or prior to the Acceptance Date, each such Lender may specify by written notice substantially in the form of Exhibit H hereto (each, a “Lender Participation Notice”) to the Administrative Agent (A) a maximum discount to par (the “Acceptable Discount”) within the Discount Range (for example, a Lender specifying a discount to par of 20% would accept a purchase price of 80% of the par value of the Loans to be prepaid) and (B) a maximum principal amount (subject to rounding requirements specified by the Administrative Agent) of the Term Loans to be prepaid held by such Lender with respect to which such Lender is willing to permit a Discounted Voluntary Prepayment at the Acceptable Discount (“Offered Loans”). Based on the Acceptable Discounts and principal amounts of the Term Loans to be prepaid specified by the Lenders in the applicable Lender Participation Notice, the Administrative Agent, in consultation with the Borrower, shall determine the applicable discount for such Term Loans to be prepaid (the “Applicable Discount”), which Applicable Discount shall be (A) the percentage specified by the Borrower if the Borrower has selected a single percentage pursuant to Section 2.03(d)(ii) for the Discounted Voluntary Prepayment or (B) otherwise, the highest Acceptable Discount at which the Borrower can pay the Proposed Discounted Prepayment Amount in full (determined by adding the Outstanding Amount of Offered Loans commencing with the Offered Loans with the highest Acceptable Discount); provided, however, that in the event that such Proposed Discounted Prepayment Amount cannot be repaid in full at any Acceptable Discount, the Applicable Discount shall be the lowest Acceptable Discount specified by the Lenders that is within the Discount Range. The Applicable Discount shall be applicable for all Lenders who have offered to participate in the Discounted Voluntary Prepayment and have Qualifying Loans. Any Lender with outstanding Term Loans to be prepaid whose Lender Participation Notice is not received by the Administrative Agent by the Acceptance Date shall be deemed to have declined to accept a Discounted Voluntary Prepayment of any of its Loans at any discount to their par value within the Applicable Discount.

 

(iv) The Borrower shall make a Discounted Voluntary Prepayment by prepaying those Term Loans to be prepaid (or the respective portions thereof) offered by the Lenders (“Qualifying Lenders”) that specify an Acceptable Discount that is equal to or greater than the Applicable Discount (“Qualifying Loans”) at the Applicable Discount, provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Borrower shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Borrower shall prepay all Qualifying Loans.

 

 

(v) Each Discounted Voluntary Prepayment shall be made within five (5) Business Days of the Acceptance Date (or such later date as the Administrative Agent shall reasonably agree, given the time required to calculate the Applicable Discount and determine the amount and holders of Qualifying Loans), without premium or penalty (but subject to Section 3.04), upon irrevocable notice substantially in the form of Exhibit I hereto (each a “Discounted Voluntary Prepayment Notice”), delivered to the Administrative Agent no later than 1:00 p.m., New York City time, three (3) Business Days prior to the date of such Discounted Voluntary Prepayment, which notice shall specify the date and amount of the Discounted Voluntary Prepayment and the Applicable Discount determined by the Administrative Agent. Upon receipt of any Discounted Voluntary Prepayment Notice, the Administrative Agent shall promptly notify each relevant Lender thereof. If any Discounted Voluntary Prepayment Notice is given, the amount specified in such notice shall be due and payable to the applicable Lenders, subject to the Applicable Discount on the applicable Loans, on the date specified therein together with accrued interest (on the par principal amount) to but not including such date on the amount prepaid. The par principal amount of each Discounted Voluntary Prepayment of a Term Loan shall be applied ratably to reduce the remaining installments of such Class of Term Loans (as applicable).

 

(vi) To the extent not expressly provided for herein, each Discounted Voluntary Prepayment shall be consummated pursuant to procedures (including as to timing, rounding, minimum amounts, Type and Interest Periods and calculation of Applicable Discount in accordance with Section 2.03(d)(ii) above) established by the Administrative Agent and the Borrower, each acting reasonably.

 

(vii) Prior to the delivery of a Discounted Voluntary Prepayment Notice, (A) upon written notice to the Administrative Agent, the Borrower may withdraw or modify its offer to make a Discounted Voluntary Prepayment pursuant to any Discounted Prepayment Option Notice and (B) no Lender may withdraw its offer to participate in a Discounted Voluntary Prepayment pursuant to any Lender Participation Notice unless the terms of such proposed Discounted Voluntary Prepayment have been modified by the Borrower after the date of such Lender Participation Notice.

 

(viii) Nothing in this Section 2.03(d) shall require the Borrower to undertake any Discounted Voluntary Prepayment.

 

(e) All Prepayments. Upon (i) an optional prepayment in accordance with Section 2.03(a), (ii) a mandatory prepayment in accordance with Section 2.03(b)(iii) or (iii) an acceleration of the Loans pursuant to Section 8.02 (whether automatic or optional acceleration) following an Event of Default, the Borrower shall make an additional payment to the Administrative Agent for the account of the Lenders in an aggregate amount equal to (x) if such repayment or acceleration occurs on or prior to the twelve (12) month anniversary of the Closing Date (the “Make-Whole Expiry Date”), the Make-Whole Amount determined for the repayment date with respect to such principal amount plus any accrued and unpaid interest and other amounts due thereon or (y) if such repayment or acceleration occurs after the Make-Whole Expiry Date, a fee (the “Repayment Fee”) in an amount equal to (1) if such repayment or acceleration occurs following the Make-Whole Expiry Date but on or prior to the twenty-four (24) month anniversary of the Closing Date, 2.00% of the principal of such repaid or accelerated amount, (2) if such repayment or acceleration occurs following the twenty-four month anniversary of the Closing Date but on or prior to the thirty-six (36) month anniversary of the Closing Date, 1.00% of the principal of such repaid or accelerated amount or (3) if such repayment occurs following the thirty-six (36) month anniversary of the Closing Date, 0.00% of such repaid or accelerated amount plus any accrued and unpaid interest and other amounts due thereon.

 

Section 2.04 Termination or Reduction of Commitments.

 

(a) Optional. The Borrower may, upon written notice to the Administrative Agent, terminate the unused Delayed Draw Term Commitments, or from time to time permanently reduce the unused Delayed Draw Term Commitments; provided that (i) any such notice shall be received by the Administrative Agent by noon three (3) Business Days prior to the date of termination or reduction and (ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of $100,000 in excess thereof. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of the Delayed Draw Term Commitments if such termination would have resulted from a refinancing, which refinancing shall not be consummated or otherwise shall be delayed.

 

(b) Mandatory. (i) The Initial Term Commitment of each Initial Term Lender shall be automatically and permanently reduced to $0 upon the making of such Initial Term Lender’s Initial Term Loans pursuant to Section 2.01(a) and (ii) the Delayed Draw Term Commitment of each Delayed Draw Term Lender shall be automatically and permanently reduced to $0 upon the making of all such Delayed Draw Term Lender’s Delayed Draw Term Loans pursuant to Section 2.01(b).

 

(c) Application of Commitment Reductions. The Administrative Agent will promptly notify the Lenders of any termination or reduction of unused Term Commitments of any Class under this Section 2.04. Upon any reduction of unused Term Commitments of any Class, the Term Commitment of each Lender of such Class shall be reduced by such Lender’s Applicable Percentage of the amount by which such Term Commitments are reduced (other than the termination of the Term Commitment of any Lender as provided in Section 3.06).

 

 

Section 2.05 Repayment of Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Term Lenders holding each Class of Term Loans in Dollars (i) on the last Business Day of each March, June, September and December, commencing with the first full fiscal quarter ending after the Closing Date (or with regard to the Delayed Draw Loans, ending after the applicable Delayed Draw Funding Dates) an aggregate principal amount equal to 0.25% of the aggregate principal amount of the Term Loans funded on the Closing Date (or with regard to the Delayed Draw Loans funded on the applicable Delayed Draw Funding Date) and (ii) on the Maturity Date for the Term Loans, the aggregate principal amount of all Term Loans outstanding on such date; provided that payments required by Section 2.05(i) above shall be reduced as a result of the application of prepayments in accordance with Section 2.03. In the event any Incremental Term Loans are made, such Incremental Term Loans, as applicable, shall be repaid by the Borrower in the amounts and on the dates set forth in the definitive documentation with respect thereto and on the applicable Maturity Date thereof.

 

Section 2.06 Interest.

 

(a) Subject to the provisions of Section 2.06(b), (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

 

(b) The Borrower shall pay interest on past due amounts (including, for the avoidance of doubt, any Call Premium) under this Agreement at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand to the fullest extent permitted by and subject to applicable Laws, including in relation to any required additional agreements.

 

(c) Interest on each Loan shall be due and payable in the currency in which such Loan is denominated in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein; provided, however, that one percent (1.00%) of such interest may, at Borrower’s option, be payable in kind by adding an amount equal to such one percent (1.00%) interest to the then outstanding principal balance of the Term Loans so paid in kind on each Interest Payment Date so as to increase the outstanding principal balance of such Term Loans on such Interest Payment Date within five (5) Business Days’ notice to the Administrative Agent. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

 

Section 2.07 Fees. The Borrower shall pay to the Agents or the Sole Lead Arranger, as applicable, such fees as shall have been separately agreed upon in writing (including in the Fee Letter) in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent).

 

Section 2.08 Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by the Prime Rate shall be made on the basis of a year of three hundred sixty-five (365) days or three hundred sixty-six (366) days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred sixty (360) day year and actual days elapsed. Interest shall accrue on each Loan for the day on which such Loan is made, and shall not accrue on such Loan, or any portion thereof, for the day on which such Loan or such portion is paid; provided that any such Loan that is repaid on the same day on which it is made shall, subject to Section 2.10(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

Section 2.09 Evidence of Indebtedness.

 

(a) The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by one or more entries in the Register. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the Register, the Register shall be conclusive in the absence of demonstrable error. Upon the request of any Lender, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Term Note payable to such Lender or its registered assigns, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Term Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

 

 

Section 2.10 Payments Generally.

 

(a) All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office and in immediately available funds not later than 3.00 p.m., New York City time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Applicable Lending Office. All payments received by the Administrative Agent after 3:00 p.m., New York City time, may (in the sole discretion of the Administrative Agent) be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. All payments under each Loan Document shall be made in Dollars.

 

(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

 

(c) Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:

 

(i) if the Borrower failed to make such payment, then the applicable Lender agrees to pay to the Administrative Agent forthwith on demand the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, it being understood that nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Term Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder; and

 

(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Term Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.

 

A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.10(c) shall be conclusive, absent demonstrable error.

 

(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

 

(e) The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation.

 

(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

(g) Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Applicable Percentage of the Outstanding Amount of all Loans outstanding at such time.

 

Section 2.11 Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Loans made by it, any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations, as the case may be, pro rata with each of them; provided that (x) if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon and (y) the provisions of this Section 2.11 shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant. The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.11 may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of demonstrable error) of participations purchased under this Section 2.11 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.11 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations so purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.

 

Section 2.12 Incremental Credit Extensions.

 

(a) Until the eighteen (18) month anniversary of the Closing Date and so long as (x) the Delayed Draw Term Commitments have been fully funded prior to, or at the time of, the addition of any Incremental Facility and (y) the Incremental Term Loan Conditions shall have been satisfied, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to increase the amount of Term Loans or add one or more additional tranches of term loans (any such Term Loans or additional tranche of term loans, the “Incremental Term Loans”). Notwithstanding anything to contrary herein, the aggregate amount of all Incremental Facilities (determined at the time of incurrence) shall not exceed $100,000,000. Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above or is incurred in connection with a Permitted Acquisition. Each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, all of the other Obligations under this Agreement.

 

 

(b) Any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the then-existing Term Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing the then-existing Term Loans (but excluding customary arrangement or commitment fees payable to any arranger, bookrunner or agent or their Affiliates in connection therewith)) relating to any then-existing Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to such Term Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Term Loans minus 0.50%; provided that, if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under such Term Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under such Term Loans shall be required, but only to the extent an increase in the interest rate floor in such Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to such Term Loans shall be increased to the extent of such differential between interest rate floors), (iii) any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the then-existing Term Loans, (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-existing Term Loans, (v) any Incremental Term Loans shall be secured only by the Collateral on an equal priority basis, (vi) except as otherwise required or as permitted in clauses (i) through (v) above, the other terms of any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders and/or the Additional Lenders providing such Incremental Term Loans and shall, at all times prior to the Latest Maturity Date then in effect at the time of such incurrence, be substantially consistent with the terms of then-existing Term Loans; provided that such terms may be inconsistent with the terms of the then existing Term Loans if reasonably satisfactory to the Administrative Agent (it being understood that no consent shall be required from the Administrative Agent for terms or conditions that are more restrictive than the terms or conditions of the then-existing Term Loans if the Lenders receive the benefit of such terms or conditions through their addition to the then-existing Term Loans or to the extent that they apply solely to periods following the Maturity Date with respect to the then-existing Term Loans); and (vii) no Event of Default has occurred and is continuing (or if the proceeds of such Incremental Facility are to be used, in whole or in part, to finance a Permitted Acquisition, no Default or Event of Default shall result therefrom).

 

(c) Each notice from the Borrower pursuant to this Section 2.12 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent; provided that no Incremental Term Loans may be provided by an Affiliated Lender unless, after giving effect to such Incremental Term Loans, the aggregate Outstanding Amount of all Term Loans that are held by Affiliated Lenders (other than Affiliated Debt Funds) does not exceed 25% of the aggregate Outstanding Amount of the Term Loans then outstanding. Existing Lenders as of such time shall first be offered an opportunity to provide or participate in such additional tranches of loans or increases to existing tranches of loans on a pro rata basis (or less than pro rata basis at the election of each existing Lender); provided, that each existing such Lender shall, to the extent that it intends to provide or participate in such additional tranches of loans or increases to existing tranches of loans, respond as soon as reasonably practicable and in any event within fifteen (15) Business Days after the Borrower makes such offer to such Lender (and if no such response is received by the Borrower within such period, such Lender will be deemed to have declined the opportunity to provide or participate in such additional tranches of loans or increases to existing tranches of loans). No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees. Term Commitments in respect of any Incremental Term Loans may become Term Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date).

 

Section 2.13 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the Term Commitment and Outstanding Amount of Term Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.01); provided that any waiver, amendment or modification of a type described in clause (a), (b) or (c) of the first proviso in Section 10.01 that would apply to the Term Commitments or Obligations owing to such Defaulting Lender shall require the consent of such Defaulting Lender with respect to the effectiveness of such waiver, amendment or modification with respect to the Term Commitments or Obligations owing to such Defaulting Lender.

 

 

ARTICLE III

Taxes, Increased Costs Protection and Illegality

 

Section 3.01 Taxes.

 

(a) Except as provided in this Section 3.01, any and all payments by the Borrower or any Guarantor to or for the account of any Agent or any Lender under any Loan Document shall be made free and clear of and without deduction for any Taxes unless required by applicable Law. If any applicable Withholding Agent shall be required by any Laws to deduct any Taxes from or in respect of any sum payable under any Loan Document to any Agent or any Lender, (i) if such Taxes are Indemnified Taxes, the sum payable by the applicable Borrower or applicable Guarantor shall be increased as necessary so that after all required deductions have been made (including deductions applicable to additional sums payable under this Section 3.01), each of such Agent and such Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) such applicable Withholding Agent shall make such deductions, (iii) such applicable Withholding Agent shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Laws, and (iv) within thirty (30) days after the date of such payment by such applicable Withholding Agent (or, if receipts or evidence are not available within thirty (30) days, as soon as possible thereafter), such applicable Withholding Agent shall furnish to the Borrower and such Agent or Lender (as the case may be) the original or a facsimile copy of a receipt evidencing payment thereof to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent.

 

(b) In addition, the Borrower agrees to pay all Other Taxes.

 

(c) Without duplication of any amounts payable pursuant to Section 3.01(a) or Section 3.01(b), the Borrower agrees to indemnify each Agent and each Lender for any reasonable expenses arising from the Indemnified Taxes and Other Taxes or with respect thereto, in each case whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Body. Such Agent or Lender, as the case may be, will, at the Borrower’s request, (A) provide the Borrower with a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts or (B) have the amount of such Indemnified Taxes or Other Taxes verified by an independent accountant selected by such Agent or Lender. Payment under this Section 3.01(c) shall be made within ten (10) days after the date Borrower receives such Lender’s or such Agent’s written demand therefor.

 

(d) If any Lender or Agent determines, in its reasonable discretion, that it has received a refund in respect of any Indemnified Taxes or Other Taxes as to which indemnification or additional amounts have been paid to it by the Borrower or any Guarantor pursuant to this Section 3.01, it shall promptly remit an amount equal to such refund as soon as practicable after it is determined that such refund pertains to Indemnified Taxes or Other Taxes (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower or any Guarantor under this Section 3.01 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund plus any interest included in such refund by the relevant taxing authority attributable thereto) to the Borrower, net of all reasonable out-of-pocket expenses (including any Taxes) of the Lender or Agent, as the case may be and without interest (other than any interest paid by the relevant taxing authority with respect to such refund); provided that the Borrower, upon the request of the Lender or Agent, as the case may be, agrees promptly to return an amount equal to such refund (plus any applicable interest, additions to tax or penalties) to such party in the event such party is required to repay such refund to the relevant taxing authority. Such Lender or Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing authority (provided that such Lender or Agent may delete any information therein that such Lender or Agent deems confidential). Nothing herein contained shall interfere with the right of a Lender or Agent to arrange its Tax affairs in whatever manner it thinks fit nor oblige any Lender or Agent to claim any Tax refund or to make available its Tax returns or disclose any information relating to its Tax affairs or any computations in respect thereof or require any Lender or Agent to do anything that would prejudice its ability to benefit from any other refunds, credits, reliefs, remissions or repayments to which it may be entitled.

 

(e) Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 3.01(a) or (c) with respect to such Lender it will, if requested by the Borrower, use commercially reasonable efforts (subject to legal and regulatory restrictions), at Borrower’s expense, to designate another Applicable Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the judgment of such Lender, cause such Lender and its Applicable Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided further that nothing in this Section 3.01(e) shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.01(a) or (c).

 

(f) Each Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the Administrative Agent with any documentation prescribed by law, or reasonably requested by the Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or reduction in, any withholding Tax with respect to any payments to be made to such Lender under any Loan Document. Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any documentation specifically referenced below) expired, obsolete or inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable Withholding Agent) or promptly notify the Borrower and the Administrative Agent in writing of its inability to do so.

 

 

Without limiting the generality of the foregoing:

 

(i) Each Lender that is a “United States person” (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement two properly completed and duly signed original copies of Internal Revenue Service Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding;

 

(ii) Each Lender that is not a “United States person” (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter when required by Law or upon the reasonable request of the Borrower or the Administrative Agent) whichever of the following is applicable:

 

(A) two duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor forms) claiming eligibility for benefits of an income tax treaty to which the United States is a party,

 

(B) two duly completed copies of Internal Revenue Service Form W-8ECI (or any successor forms),

 

(C) in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) or the Code, (x) a certificate, in substantially the form of Exhibit J (any such certificate a “United States Tax Compliance Certificate”), or any other form approved by the Administrative Agent, to the effect that such Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and that no payments in connection with the Loan Documents are effectively connected with such Lender’s conduct of a U.S. trade or business and (y) two duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor forms),

 

(D) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership, or is a Lender that has granted a participation), Internal Revenue Service Form W-8IMY (or any successor forms) of the Lender, accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E, as applicable (or any successor forms), United States Tax Compliance Certificate, Form W-9, Form W-8IMY (or other successor forms) or any other required information from each beneficial owner, as applicable (provided that, if the Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)), or

 

(E) two duly completed copies of any other form prescribed by applicable U.S. federal income tax laws (including the Treasury regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding tax on any payments to such Lender under the Loan Documents.

 

(iii) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their FATCA obligations, to determine whether such Lender has or has not complied with such Lender’s FATCA obligations and to determine the amount, if any, to deduct and withhold from such payment.

 

Notwithstanding any other provision of this clause (f), a Lender shall not be required to deliver any form that such Lender is not legally eligible to deliver.

 

(g) The Administrative Agent shall provide the Borrower with two duly completed original copies of, if it is a United States person (as defined in Section 7701(a)(30) of the Code), Internal Revenue Service Form W-9 certifying that it is exempt from U.S. federal backup withholding, and, if it is not a United States person, (1) Internal Revenue Service Form W-8ECI with respect to payments to be received by it as a beneficial owner and (2) Internal Revenue Service Form W-8IMY (together with required accompanying documentation) with respect to payments to be received by it on behalf of the Lenders, and shall update such forms periodically upon the reasonable request of the Borrower. Notwithstanding any other provision of this clause (g), the Administrative Agent shall not be required to deliver any form that such Administrative Agent is not legally eligible to deliver.

 

 

Section 3.02 Inability to Determine Rates; Alternative Rate of Interest.

 

(a) If in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof, (i) the Administrative Agent determines that (A) Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable amount and Interest Period of such Eurocurrency Rate Loan, or (B) (x) adequate and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan or in connection with an existing or proposed Base Rate Loan and (y) the circumstances described in Section 3.03(c)(i) do not apply (in each case with respect to this clause (i), “Impacted Loans”), or (ii) the Administrative Agent or the Required Lenders determine that for any reason the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans shall be suspended, (to the extent of the affected Eurocurrency Rate Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of this Section 3.02(a), until the Administrative Agent upon instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans (to the extent of the affected Eurocurrency Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

 

(b) Notwithstanding the foregoing, if the Administrative Agent has made the determination described in clause (i) of Section 3.02(a), the Administrative Agent, in consultation with the Borrower, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (i) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (i) of the first sentence of Section 3.02(a), (ii) the Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (iii) any Lender determines that any Law has made it unlawful, or that any Governmental Body has asserted that it is unlawful, for such Lender or its Applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Body has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.

 

(c) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.

 

(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right (in consultation with the Borrower) to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

 

(e) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.02, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.02.

 

 

(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then current Benchmark is a term rate (including Term SOFR or Eurocurrency Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.

 

(g) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurocurrency Rate Loan of, conversion to or continuation of Eurocurrency Rate Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, with respect to a request for a Borrowing of or conversion to a Eurocurrency Rate Loan denominated in Dollars, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.

 

Section 3.03 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans.

 

(a) If any Lender determines that as a result of any Change in Law, or such Lender’s compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining any Loan, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this Section 3.03(a) any such increased costs or reduction in amount resulting from (i) Indemnified Taxes or Other Taxes indemnifiable under Section 3.01, (ii) Excluded Taxes or (iii) reserve requirements contemplated by Section 3.03(c) or included in determining the Reserve Percentage), then from time to time within fifteen (15) days after demand by such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent given in accordance with Section 3.05), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction; provided that in the case of any Change in Law only applicable as a result of the proviso set forth in the definition thereof, such Lender will only be compensated for such amounts that would have otherwise been imposed under the applicable increased cost provisions and only to the extent the applicable Lender is imposing such charges on other similarly situated borrowers under comparable syndicated credit facilities.

 

(b) If any Lender determines that as a result of any Change in Law regarding capital adequacy or any change therein or in the interpretation thereof, in each case after the date hereof, or compliance by such Lender (or its Applicable Lending Office) therewith, has the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy and such Lender’s desired return on capital), then from time to time upon demand of such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return (with a copy of such demand to the Administrative Agent given in accordance with Section 3.05), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such reduction within fifteen (15) days after receipt of such demand.

 

(c) The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves (other than reserves taken into account in the calculation of the Reserve Percentage) with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits, additional interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive in the absence of demonstrable error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Term Commitments or the funding of the Eurocurrency Rate Loans (other than reserves taken into account in the calculation of the Reserve Percentage), such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Term Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent demonstrable error) which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least fifteen (15) days’ prior notice (with a copy to the Administrative Agent) of such additional interest or cost from such Lender. If a Lender fails to give notice fifteen (15) days prior to the relevant Interest Payment Date, such additional interest or cost shall be due and payable fifteen (15) days after receipt of such notice.

 

(d) Subject to Section 3.05(b), failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.03 shall not constitute a waiver of such Lender’s right to demand such compensation.

 

(e) If any Lender requests compensation under this Section 3.03 then such Lender will, if requested by the Borrower, use commercially reasonable efforts to designate another Applicable Lending Office for any Loan affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Applicable Lending Office(s) to suffer no material economic, legal or regulatory disadvantage; and provided, further, that nothing in this Section 3.03(e) shall affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Section 3.03(a), (b), (c) or (d).

 

 

Section 3.04 Funding Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

 

(a) any continuation, conversion, payment or prepayment of any Eurocurrency Rate Loan on a day other than the last day of the Interest Period for such Loan; or

 

(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan (other than a Base Rate Loan) on the date or in the amount notified by the Borrower;

 

including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.

 

For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.04, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.

 

Section 3.05 Matters Applicable to All Requests for Compensation.

 

(a) Any Agent or any Lender claiming compensation under this Article III shall deliver a certificate to the Borrower setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of demonstrable error. In determining such amount, such Agent or such Lender may use any reasonable averaging and attribution methods.

 

(b) With respect to any Lender’s claim for compensation under Section 3.01, Section 3.03 or Section 3.04, the Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to include the period of retroactive effect thereof. If any Lender requests compensation by the Borrower under Section 3.03, the Borrower may, by written notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue Eurocurrency Rate Loans from one Interest Period to another, or to convert Base Rate Loans into Eurocurrency Rate Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the provisions of Section 3.05(c) shall be applicable); provided that such suspension shall not affect the right of such Lender to receive the compensation so requested or the right of Borrower under Section 3.06.

 

(c) If the obligation of any Lender to make or continue any Eurocurrency Rate Loan from one Interest Period to another, or to convert Base Rate Loans into Eurocurrency Rate Loans shall be suspended pursuant to Section 3.05(b) hereof, such Lender’s Eurocurrency Rate Loans denominated in Dollars shall be automatically converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for such Eurocurrency Rate Loans (or, in the case of an immediate conversion required by Section 3.02, on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 3.01, Section 3.02, Section 3.03 or Section 3.04 hereof that gave rise to such conversion no longer exist:

 

(i) to the extent that such Lender’s Eurocurrency Rate Loans denominated in Dollars have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s Eurocurrency Rate Loans shall be applied instead to its Base Rate Loans; and

 

(ii) all Loans denominated in Dollars that would otherwise be made or continued from one Interest Period to another by such Lender as Eurocurrency Rate Loans shall be made or continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be converted into Eurocurrency Rate Loans shall remain as Base Rate Loans.

 

(d) If any Lender gives notice to the Borrower (with a copy to the Administrative Agent) that the circumstances specified in Section 3.01, Section 3.02, Section 3.03 or Section 3.04 hereof that gave rise to the conversion of such Lender’s Eurocurrency Rate Loans denominated in Dollars pursuant to this Section 3.05 no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Eurocurrency Rate Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically converted to Eurocurrency Rate Loans, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Eurocurrency Rate Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding Eurocurrency Rate Loans and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Term Commitments.

 

 

Section 3.06 Replacement of Lenders under Certain Circumstances.

 

(a) If at any time (i) any Lender requests reimbursement for amounts owing pursuant to Section 3.01 or Section 3.03 as a result of any condition described in such Sections or any Lender ceases to make Eurocurrency Rate Loans as a result of any condition described in Section 3.02, Section 3.03 or Section 3.07, (ii) any Lender becomes a Defaulting Lender or (iii) any Lender becomes a Non-Consenting Lender, then the Borrower may, on prior written notice to the Administrative Agent and such Lender, replace such Lender by requiring such Lender to (and such Lender shall be obligated to) assign pursuant to Section 10.07(b) (with the assignment fee to be paid by the Borrower in such instance) all of its rights and obligations under this Agreement (or, with respect to clause (iii) above, all of its rights and obligations with respect to the Class of Loans or Term Commitments that is the subject of the related consent, waiver or amendment) to one or more Eligible Assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender or other such Person; and provided, further, that (A) in the case of any such assignment resulting from a claim for compensation under Section 3.03 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments and (B) in the case of any such assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable Eligible Assignees shall have agreed to the applicable departure, waiver or amendment of the Loan Documents.

 

(b) Any Lender being replaced pursuant to Section 3.06(a) above shall (i) execute and deliver an Assignment and Assumption with respect to such Lender’s Term Commitment and outstanding Loans, as applicable (provided that the failure of any such Lender to execute an Assignment and Assumption shall not render such assignment invalid and such assignment shall be recorded in the Register) and (ii) except as set forth in (C) of this Section 3.06 (b), deliver Term Notes, if any, evidencing such Loans to the Borrower or Administrative Agent. Pursuant to such Assignment and Assumption, (A) the assignee Lender shall acquire all or a portion, as the case may be, of the assigning Lender’s Term Commitments and outstanding Loans, as applicable, (B) all obligations of the Loan Parties owing to the assigning Lender relating to the Loan Documents and participations so assigned shall be paid in full by the assignee Lender or the Loan Parties (as applicable) to such assigning Lender concurrently with such assignment and assumption, and any amounts owing to the assigning Lender (other than a Defaulting Lender) under Section 3.04 as a consequence of such assignment and the premium, if any, that would have been payable by the Borrower on such date pursuant to Section 2.03(e) if such Lender’s Term Loans subject to such assignment had been prepaid on such date shall have been paid by the Borrower to the assigning Lender (other than a Defaulting Lender) and (C) upon such payment and, if so requested by the assignee Lender, the assignor Lender shall deliver to the assignee Lender the appropriate Term Note executed by the Borrower, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute a Lender hereunder with respect to such assigned Loans, Term Commitments and participations, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender.

 

(c) In the event that (i) the Borrower or the Administrative Agent has requested that the Lenders (A) consent to a departure or waiver of any provisions of the Loan Documents or (B) agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all affected Lenders in accordance with the terms of Section 10.01 or all the Lenders with respect to a certain Class of the Loans and (iii) the Required Lenders have agreed to such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “Non-Consenting Lender.”

 

(d) Notwithstanding anything herein to the contrary, each party hereto agrees that any assignment pursuant to the terms of this Section 3.06 may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender making such assignment need not be a party thereto.

 

Section 3.07 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Body has asserted that it is unlawful, for any Lender or its Applicable Lending Office to perform any of its obligations hereunder or make, maintain or fund or charge interest with respect to any Credit Extension or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Body has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Credit Extension or continue Eurocurrency Rate Loans or to convert Base Rate Loans to Eurocurrency Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurocurrency Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurocurrency Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

 

 

Section 3.08 Survival. All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder and any assignment of rights by or replacement of a Lender.

 

ARTICLE IV

Conditions Precedent to Credit Extensions

 

Section 4.01 Conditions to Closing Date. The obligation of each Lender to make the Initial Term Loans is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):

 

(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:

 

(i) executed counterparts of this Agreement;

 

(ii) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;

 

(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;

 

(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):

 

(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and

 

(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent;

 

provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);

 

(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;

 

(vi) an opinion of Akerman LLP, counsel to the Loan Parties;

 

(vii) a certificate signed by a Responsible Officer of the Borrower certifying that (A) since March 12, 2021, there shall not have occurred and be continuing, any change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfied;

 

 

(viii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and

 

(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date.

 

(b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.

 

(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).

 

(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.

 

(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.

 

(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

 

(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.

 

For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such Lender has notified the Administrative Agent of any disagreement prior to the Closing Date.

 

Section 4.02 Conditions to Subsequent Credit Extensions. The obligation of each Lender to honor any Committed Loan Notice for the making of a Delayed Draw Term Loan is subject to the following conditions precedent:

 

(a) The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Extension; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates; provided however, if the proceeds of such Delayed Draw Term Loans will be used in connection with a Permitted Acquisition, solely the Specified Representations shall be true and correct in all material respects on and as of the Delayed Draw Funding Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

 

 

(b) No Default shall have occurred and be continuing, or would result from such proposed Credit Extension or from the application of the proceeds therefrom; provided that, if the proceeds of such Delayed Draw Term Loans will be used in connection with a Permitted Acquisition, this clause (b) shall only require that no Event of Default shall have occurred and be continuing, or would result from such proposed Credit Extension or from the application of the proceeds therefrom.

 

(c) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof.

 

(d) The Consolidated Total Net Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, calculated on a Pro Forma Basis and giving effect to the use of proceeds of such Delayed Draw Term Loans (excluding the cash proceeds to the Borrower of such Delayed Draw Term Loans), shall not exceed 2.50 to 1.00.

 

(e) The proceeds of borrowings of Delayed Draw Term Loans shall only be used by the Borrower (A) to finance Permitted Acquisitions and similar investments (and such Delayed Draw Term Loans may be drawn prior to or substantially simultaneously with the consummation of such Permitted Acquisition or investment), and earn-outs and (B) in each case, to pay related fees and expenses, including earn-out obligations with respect to such Permitted Acquisitions and similar investments.

 

(f) All fees required to be paid on the Closing Date pursuant to the Fee Letter shall have been paid in full in cash or will be paid on the Delayed Draw Funding Date.

 

Each Committed Loan Notice to obtain a new Term Loan submitted by the Borrower shall be deemed to be a representation and warranty that the applicable conditions specified in Sections 4.02(b) have been satisfied on and as of the date of the applicable Credit Extension.

 

ARTICLE V

Representations and Warranties

 

The Borrower represents and warrants to the Agents and the Lenders on the Closing Date and on each Delayed Draw Funding Date (subject to the limitations in Section 4.02(a)) that:

 

Section 5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each other Restricted Subsidiary (a) is a Person duly incorporated, organized or formed, and validly existing and, where applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and, where applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws (including the USA PATRIOT Act and anti-money laundering laws), orders, writs, injunctions and orders and (e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except in each case referred to in clause (a) (other than with respect to the Borrower), (b)(i), (c), (d) or (e), to the extent that failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

Section 5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation of the Transaction, (a) have been duly authorized by all necessary corporate or other organizational action and (b) do not and will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or require any payment to be made under (A) any Contractual Obligation for Indebtedness exceeding the Threshold Amount to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any material order, injunction, writ or decree of any Governmental Body or any arbitral award to which such Person or its property is subject, (iii) result in the creation of any Lien (other than Permitted Liens) or (iv) violate any material Law; except (in the case of clauses (b)(ii) and (b)(iv)), to the extent that such conflict, breach, contravention, payment or violation could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

 

Section 5.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Body or any other Person is necessary or required to be obtained by the Loan Parties in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transaction, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect and (iii) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

Section 5.04 Binding Effect. This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party thereto. This Agreement and each other Loan Document constitutes a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity.

 

Section 5.05 Financial Statements; No Material Adverse Effect.

 

(a) The Audited Financial Statements and Unaudited Financial Statements fairly present in all material respects the consolidated financial condition of the Borrower and its Subsidiaries and the combined financial condition of the Target Companies, as of the dates thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby, except as otherwise disclosed to the Administrative Agent prior to the Closing Date.

 

(b) Since the date of the most recent audited financial statement provided to the Administrative Agent, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

 

Each Lender and the Administrative Agent hereby acknowledges and agrees that the Borrower and its Subsidiaries may be required to restate historical financial statements as the result of the implementation of changes in GAAP or IFRS, or the respective interpretation thereof, and that such restatements will not result in a Default or Event of Default under the Loan Documents.

 

Section 5.06 Litigation. Except as set forth on Schedule 5.06 (as it may be updated by the Borrower), there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened in writing or contemplated, at law, in equity, in arbitration or before any Governmental Body, by or against the Borrower or any Subsidiary or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

Section 5.07 Ownership of Property; Liens. Each Loan Party and each of its Subsidiaries has good and valid title to, or valid leasehold interests in, or easements or other limited property interests in, all property necessary in the ordinary conduct of its business, free and clear of all Liens except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes, Permitted Liens and any Liens and privileges arising mandatorily by Law and, in each case, except where the failure to have such title or other interest could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

Section 5.08 Environmental Matters. Except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:

 

(a) there are no pending or, to the knowledge of the Borrower, threatened claims, actions, suits, notices of violation, notices of potential responsibility, disputes or proceedings by or against any Loan Party or any of their Subsidiaries alleging potential liability or responsibility for violation of, or otherwise relating to, any Environmental Law;

 

(b) (i) there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of their Subsidiaries; and (ii) there has been no Release of Hazardous Materials by any of the Loan Parties or any of their Subsidiaries at, on, under or from any location in a manner which would reasonably be expected to give rise to liability under Environmental Laws;

 

 

(c) neither any Loan Party nor any of their Subsidiaries is undertaking, or has completed, either individually or together with other persons, any investigation or response action relating to any actual or threatened Release of Hazardous Materials at any location, either voluntarily or pursuant to the order of any Governmental Body or the requirements of any Environmental Law;

 

(d) all Hazardous Materials transported from any property currently or, to the knowledge of the Borrower or its Subsidiaries, formerly owned or operated by any Loan Party or any of their Subsidiaries for off-site disposal have been disposed of in compliance with all Environmental Laws;

 

(e) none of the Loan Parties nor any of their Subsidiaries has contractually assumed any liability or obligation under or relating to any Environmental Law; and

 

(f) the Loan Parties and each of their Subsidiaries and their respective businesses, operations and properties are and have been in compliance with all Environmental Laws.

 

Section 5.09 Taxes. The Borrower and each Subsidiary have timely filed all federal, provincial, state, municipal, foreign and other Tax returns and reports required to be filed, and have timely paid all federal, provincial, state, municipal, foreign and other Taxes levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP and, except for failures to file or pay as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. There are no Tax audits, deficiencies, assessments or other claims with respect to the Borrower or any Subsidiary that could, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

Section 5.10 Compliance with ERISA.

 

(a) Except as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state Laws and applicable foreign laws, respectively.

 

(b) (i) No ERISA Event or similar event with respect to a Foreign Plan has occurred or is reasonably expected to occur; (ii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 et seq. or 4243 of ERISA with respect to a Multiemployer Plan; and (iii) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA, except, with respect to each of the foregoing clauses of this Section 5.10, as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

 

Section 5.11 Subsidiaries; Equity Interests. As of the Closing Date, neither the Borrower nor any other Loan Party has any Subsidiaries other than those specifically disclosed in Schedule 5.11, and all of the outstanding Equity Interests in the Borrower’s Subsidiaries have been validly issued, are fully paid and, in the case of Equity Interests representing corporate interests, nonassessable and, on the Closing Date, all Equity Interests owned directly or indirectly by the Borrower or any other Loan Party are owned free and clear of all Liens except (i) those created under the Collateral Documents, (ii) those Liens permitted under Sections 7.01(b), (o), (v) (solely with respect to modifications, replacements, renewals or extensions of Liens permitted by Sections 7.01(b) and (o)), (z), (ee), (ff) and (gg) and (iii) any nonconsensual Lien that is permitted under Section 7.01. As of the Closing Date, Schedule 5.11 (a) sets forth the name and jurisdiction of organization or incorporation of each Subsidiary, (b) sets forth the ownership interest of the Borrower and any of its Subsidiaries in each of their Subsidiaries, including the percentage of such ownership and (c) identifies each Person and whether the Equity Interests of which are required to be pledged on the Closing Date pursuant to the Collateral and Guarantee Requirement.

 

Section 5.12 Margin Regulations; Investment Company Act.

 

(a) No Loan Party is engaged nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Borrowings will be used for any purpose that violates Regulation U or Regulation X of the FRB.

 

(b) None of the Borrower, any Person Controlling the Borrower or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.

 

 

Section 5.13 Disclosure. No report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished) when taken as a whole contains when furnished any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (giving effect to all supplements and updates thereto); provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation; it being understood that (i) such projections are as to future events and are not to be viewed as facts and are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower, (ii) no assurance can be given that any particular projections will be realized and that actual results during the period or periods covered by any such projections may differ significantly from the projected results and (iii) such differences may be material.

 

Section 5.14 Intellectual Property; Licenses, Etc. Each of the Loan Parties and the other Restricted Subsidiaries own, license or possess the right to use, all of the trademarks, service marks, trade names, domain names, copyrights, patents, patent rights, technology, software, know-how database rights, design rights and other intellectual property rights (collectively, “IP Rights”) that are used in or reasonably necessary for the operation of their respective businesses as currently conducted, and, to the knowledge of the Borrower, without violation of the rights of any Person, except to the extent such failures or violations, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any such IP Rights, is pending or, to the knowledge of the Borrower, threatened against any Loan Party or Subsidiary, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

Section 5.15 Solvency. On the Closing Date after giving effect to the Transaction, the Borrower and its Subsidiaries, on a consolidated basis, are Solvent.

 

Section 5.16 Collateral Documents. The Collateral Documents are effective to create in favor of the Collateral Agent for the benefit of the Secured Parties legal, valid and enforceable Liens on and security interests in, the Collateral described therein and to the extent intended and able to be created thereby, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity, and, subject to requirement (d) of the definition of Collateral and Guarantee Requirement, (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under applicable Laws (which filings or recordings shall be made to the extent required by any Collateral Document) and (ii) upon the taking of possession or control by the Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent required by any Collateral Document), the Liens created by such Collateral Documents will constitute so far as possible under relevant Law fully perfected Liens on, and security interests in, all right, title and interest of the Loan Parties in such Collateral, in each case subject to no Liens other than Permitted Liens.

 

Section 5.17 Use of Proceeds.

 

(a) The proceeds of the Initial Term Loans shall be used solely to consummate the Transactions and to fund any upfront fees in connection therewith;

 

(b) The proceeds of any Incremental Facility shall be used for working capital requirements and other general corporate purposes of the Borrower and its Subsidiaries including the financing of acquisitions, other investments and dividends, other distributions on account of the Equity Interests of the Borrower permitted hereunder and any other use not prohibited under the Loan Documents.

 

(c) The proceeds of the Delayed Draw Term Loans shall be used by the Borrower to substantially concurrently finance Permitted Acquisitions and similar investments or “earn-outs” entered into in connection with acquisitions (including the Acquisition) and to pay fees and expenses related thereto.

 

Section 5.18 Anti-Money Laundering/International Trade Law Compliance.

 

(a) Neither any Covered Entity nor any Covered Entity Controlling Person is a Sanctioned Person, and no Covered Entity, either in its own right or through any third party, (A) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (B) does business in or with, or derives any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (C) engages in any dealings or transactions prohibited by any Anti-Terrorism Law.

 

(b) No part of the proceeds of any Loan will be used for any improper payments, directly or, to the knowledge of the Borrower, indirectly, to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, or any other party (if applicable) in order to obtain, retain or direct business or obtain any improper advantage, in material violation of the FCPA and any similar laws, rules or regulations issued, administered or enforced by any Governmental Body having jurisdiction over the Borrower.

 

 

Section 5.19 Labor Matters. (a) Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against the Borrower or any of its Restricted Subsidiaries pending or, to the knowledge of the Borrower, threatened; and (b) hours worked by and payment made to employees of the Borrower or any of its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Laws dealing with such matters.

 

ARTICLE VI

Affirmative Covenants

 

From and after the Closing Date and for so long as any Lender shall have any Term Commitment hereunder or for so long as any Loan or other Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied (other than contingent indemnification obligations not yet due and payable), the Borrower shall, and shall (except in the case of the covenants set forth in Section 6.01, Section 6.02 and Section 6.03) cause each Restricted Subsidiary to:

 

Section 6.01 Financial Statements. Deliver to the Administrative Agent for prompt further distribution to each Lender:

 

(a) as soon as available, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Borrower (or such earlier date as may be required, including any extensions, by the SEC), (i) a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, stockholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail (it being understood and agreed that the Borrower shall include a statement in its annual reports on Form 10-K filed with the SEC for such period indicating whether it is in compliance with the applicable Financial Covenants for such period) and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to (other than with respect to, or resulting from, the regularly scheduled maturity of the Loans hereunder or any prospective or actual default under any Financial Covenant) any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and (ii) management’s discussion and analysis, in reasonable detail and signed by a Responsible Officer of the Borrower, describing the operations and financial condition of the Loan Parties and their Subsidiaries for the fiscal year then ended;

 

(b) as soon as available, but in any event, within sixty (60) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (or such earlier date as may be required, including any extensions, by the SEC), (i) a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations for such fiscal quarter and for the portion of the fiscal year then ended and consolidated statements of cash flows for the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail (it being understood and agreed that the Borrower shall include a statement in its quarterly reports on Form 10-Q filed with the SEC for such period indicating whether it is in compliance with the applicable Financial Covenants for such period) and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end adjustments and the absence of footnotes and (ii) management’s discussion and analysis, in reasonable detail and signed by a Responsible Officer of the Borrower, describing the operations and financial condition of the Loan Parties and their Subsidiaries for the fiscal quarter then ended; provided, however, that in each case with respect to clauses (i) and (ii) above, with respect to the fiscal quarter ended September 30, 2021, the Borrower (x) shall only be required to use commercially reasonable efforts to deliver such consolidated balance sheet and management’s discussion and analysis and (y) may elect to provide such consolidated balance sheet and management’s discussion and analysis on a standalone basis solely with respect to the Borrower and its Subsidiaries (excluding the Target Companies).

 

(c) simultaneously with the delivery of each set of consolidated financial statements referred to in Section 6.01(a) and (b) above the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements (such statements shall not be required to be audited and may be in footnote format).

 

Section 6.02 Certificates; Other Information. Deliver to the Administrative Agent for prompt further distribution to each Lender:

 

(a) together with the delivery of the financial statements referred to in Section 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower;

 

(b) promptly after the same are publicly available, copies of all annual, regular, periodic and special reports, proxy statements and registration statements which the Borrower files with the SEC or with any Governmental Body that may be substituted therefor or with any national securities exchange, as the case may be (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered), exhibits to any registration statement and, if applicable, any registration statement on Form S-8), and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;

 

(c) promptly after the furnishing thereof, copies of any requests or notices received by any Loan Party or any of its Subsidiaries (other than in the ordinary course of business) that could reasonably expected to result in a Material Adverse Effect;

 

 

(d) together with the delivery of the financial statements pursuant to Section 6.01(a) and each related Compliance Certificate pursuant to Section 6.02(a), (i) a report setting forth the information required by Section 3.03(c) of the Security Agreement or confirming that there has been no change in such information since the Closing Date or for any time after the delivery of the initial Compliance Certificate, since the date of the last annual Compliance Certificate and (ii) a list of Subsidiaries that identifies each Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such annual Compliance Certificate or a confirmation that there is no change in such information since the later of the Closing Date or, for any time after the delivery of the initial Compliance Certificate, since the date of the last such list;

 

(e) no later than sixty (60) days following the first day of each fiscal year of the Borrower (commencing with the first fiscal year of the Borrower that commences after the Closing Date), an annual budget (on a quarterly basis) for such fiscal year in form customarily prepared by the Borrower; and

 

(f) promptly, such additional information regarding the business, legal, financial or corporate affairs of any Loan Party or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably request.

 

Documents required to be delivered pursuant to Section 6.01(a) and (b), Section 6.02(b) and (d) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents.

 

The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Subsidiaries, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (v) all such Borrower Materials that are to be made available to Public Lender shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (w) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.08); (x) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; (y) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”; and (z) the Borrower hereby authorizes the Administrative Agent and the Lenders to treat the information set forth in Section 6.01(a)(i), Section 6.01(b)(i) and Section 6.02(b), in each case, to be public.

 

Section 6.03 Notices. Promptly after a Responsible Officer obtains actual knowledge thereof, notify the Administrative Agent for prompt further distribution to each Lender:

 

(a) of the occurrence of any Default, which notice shall specify the nature thereof, the period of existence thereof and what action the Borrower proposes to take with respect thereto;

 

(b) any litigation or governmental proceeding (including, without limitation, pursuant to any Environmental Laws, Anti-Terrorism Laws, the USA Patriot Act and the FCPA) pending against the Borrower or any of the Subsidiaries that could reasonably be expected to be determined adversely and, if so determined, to result in a Material Adverse Effect; and

 

(c) of the occurrence of any ERISA Event that could reasonably be expected to have a Material Adverse Effect.

 

 

Section 6.04 Maintenance of Existence. (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization or incorporation and (b) take all reasonable action to maintain all rights, privileges (including its good standing), permits, licenses and franchises necessary or desirable in the normal conduct of its business, except in the case of clauses (a) (other than with respect to the Borrower) and (b), (i) to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect or (ii) pursuant to a transaction permitted by Section 7.04 or Section 7.05.

 

Section 6.05 Maintenance of Properties. Except if the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (a) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and casualty or condemnation excepted, and (b) make all necessary renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof or thereto in accordance with prudent industry practice.

 

Section 6.06 Maintenance of Insurance. Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as the Borrower and its Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons. If any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), then, to the extent required by applicable Laws, the Borrower shall, or shall cause each Loan Party to, (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such compliance in form reasonably acceptable to the Administrative Agent. Any such insurance (excluding business interruption insurance) maintained in the United States shall name the Collateral Agent as additional insured or loss payee, as applicable.

 

Section 6.07 Compliance with Laws. Comply in all respects with the requirements of all Laws and all orders, writs, injunctions, decrees and judgments applicable to it or to its business or property (including without limitation Environmental Laws, ERISA and Anti-Terrorism Laws, OFAC and FCPA), except if the failure to comply therewith could not, individually or in the aggregate reasonably be expected to have a Material Adverse Effect.

 

Section 6.08 Books and Records. Maintain proper books of record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied shall be made of all material financial transactions and matters involving the assets and business of the Borrower or such Subsidiary, as the case may be.

 

Section 6.09 Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties and to discuss its affairs, finances and accounts with its directors, managers, officers, and independent public accountants, all at the reasonable expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the Administrative Agent and the Lenders under this Section 6.09 and the Administrative Agent shall not exercise such rights more often than two (2) times during any calendar year absent the existence of an Event of Default and only one (1) such time shall be at the Borrower’s expense; provided, further, that when an Event of Default exists, the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall give the Borrower the opportunity to participate in any discussions with the Borrower’s independent public accountants. Notwithstanding anything to the contrary in this Section 6.09, none of the Borrower or any Restricted Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or any binding agreement or (iii) that is subject to attorney client or similar privilege or constitutes attorney work product.

 

 

Section 6.10 Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:

 

(a) upon the formation or acquisition of any new direct or indirect Wholly-Owned Subsidiary (in each case, other than an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 6.13 of any existing direct or indirect Wholly-Owned Subsidiary as a Restricted Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary:

 

(i) within thirty (30) days after such formation (unless formed solely in connection with an acquisition, then after such acquisition), acquisition, designation or occurrence or such longer period as the Administrative Agent may agree in its reasonable discretion:

 

(A) cause each such Restricted Subsidiary to furnish to the Administrative Agent a description of the Material Real Properties owned by such Restricted Subsidiary in detail reasonably satisfactory to the Administrative Agent;

 

(B) cause each such Restricted Subsidiary to deliver any and all certificates representing Equity Interests (to the extent certificated) that are required to be pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of transfer executed in blank and (if applicable) instruments evidencing the Indebtedness held by such Restricted Subsidiary and required to be pledged pursuant to the Collateral and Guarantee Requirements and the Collateral Documents, indorsed in blank to the Collateral Agent; and

 

(C) take and cause such Restricted Subsidiary and each direct or indirect parent of such Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages, the filing of financing statements and delivery of stock and membership interest certificates) may be necessary in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected Liens with the priority required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law);

 

(ii) within forty-five (45) days after such formation (unless formed solely in connection with an acquisition, then after such acquisition), acquisition, designation or occurrence or such longer period as the Administrative Agent may agree in its reasonable discretion:

 

(A) cause each such Restricted Subsidiary to duly execute and deliver to the Administrative Agent or the Collateral Agent (as appropriate) Mortgages, pledges, guarantees, assignments, Security Agreement Supplements and other security agreements and documents or joinders or supplements thereto (including without limitation, with respect to Mortgages, the documents listed in paragraph (f) of the definition of Collateral and Guarantee Requirement), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent (consistent with the Mortgages, Security Agreement and other Collateral Documents in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement; and

 

(iii) as promptly as practicable after the request therefor by the Collateral Agent and to the extent in the Borrower’s possession, deliver to the Collateral Agent with respect to each Material Real Property, any title reports, title insurance policies and surveys or environmental assessment reports; and

 

 

(b) after the Closing Date, promptly after the acquisition of any Material Real Property by any Loan Party, if such Material Real Property shall not already be subject to a perfected Lien (subject to Permitted Liens) under the Collateral Documents with the priority required pursuant to the Collateral and Guarantee Requirement and is required to be, the Borrower shall give notice thereof to the Administrative Agent and within sixty (60) days (with such extensions as agreed by the Administrative Agent in its reasonable discretion of the date of such acquisition shall cause such real property to be subjected to a Lien to the extent required by the Collateral and Guarantee Requirement) and will take, or cause the relevant Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent or the Collateral Agent to grant and perfect or record such Lien, including, as applicable, the actions referred to in paragraph (f) of the definition of “Collateral and Guarantee Requirement” and shall, within forty-five (45) days after the request therefor by the Administrative Agent or the Collateral Agent (or such longer period as the Administrative Agent may agree in its reasonable discretion), deliver to the Administrative Agent and the Collateral Agent signed copies of opinions, addressed to the Administrative Agent, the Collateral Agent and the other Secured Parties regarding the corporate formation, existence and good standing of the applicable mortgagor, and such other matters as may be reasonably requested by the Administrative Agent or the Collateral Agent, and each such opinion shall be in form and substance reasonably acceptable to the Administrative Agent.

 

Section 6.11 Use of Proceeds. Use the proceeds of any Credit Extension in the manner set forth in Section 5.17.

 

Section 6.12 Further Assurances and Post-Closing Covenants.

 

(a) Promptly upon reasonable request by the Administrative Agent or the Collateral Agent (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral, and (ii) subject to the limitations set forth in the Collateral and Guarantee Requirement, do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent or the Collateral Agent may reasonably request from time to time in order to carry out more effectively the purposes of this Agreement and the Collateral Documents; provided, however, that notwithstanding anything to the contrary contained in this Agreement or any other Collateral Document, nothing in this Agreement or any other Collateral Document shall require the Borrower or any Loan Party to make any filings or take any actions to record or to perfect the Collateral Agent’s security interest in (i) any IP Rights other than the filing of documents effecting the recordation of security interests in the United States Copyright Office or United States Patent and Trademark Office, or (ii) any non-United States IP Rights;

 

(b) Within 90 days after the Closing Date (or such longer period as the Administrative Agent may agree in its sole discretion), the Borrower shall cause each Material Real Property to be subjected to a Lien (subject to Permitted Liens) to the extent required by the Collateral and Guarantee Requirement and will take, or cause the relevant Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent or the Collateral Agent to grant and perfect or record such Lien, including, as applicable, the actions referred to in paragraph (f) of the definition of “Collateral and Guarantee Requirement” and shall deliver to the Administrative Agent and the Collateral Agent signed copies of opinions, addressed to the Administrative Agent, the Collateral Agent and the other Secured Parties, of local counsel for the Loan Parties in each jurisdiction where a Mortgaged Property is located, regarding the due execution and delivery and enforceability of each such Mortgage, the corporate formation, existence and good standing of the applicable mortgagor, and such other matters as may be reasonably requested by the Administrative Agent or the Collateral Agent, and each such local counsel opinion shall be in form and substance reasonably acceptable to the Administrative Agent; and

 

(c) Within the time periods specified on Schedule 6.12 hereto (as each may be extended by the Administrative Agent in its reasonable discretion), complete such undertakings as are set forth on Schedule 6.12 hereto.

 

Section 6.13 Designation of Subsidiaries.

 

(a) Subject to Section 6.13(b) below, the Borrower may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the Borrower’s investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such previously Unrestricted Subsidiary existing at such time.

 

(b) The Borrower may not (x) designate any Restricted Subsidiary as an Unrestricted Subsidiary, or (y) designate an Unrestricted Subsidiary as a Restricted Subsidiary, in each case unless:

 

(i) no Event of Default shall have occurred and be continuing;

 

(ii) the Borrower is in compliance with the Financial Covenants on a Pro Forma Basis; and

 

 

(iii) in the case of clause (x) only, (A) the Subsidiary to be so designated does not (directly, or indirectly through its Subsidiaries) own any Equity Interests or Indebtedness of, or own or hold any Lien on any property of, the Borrower or any Restricted Subsidiary, and (B) neither the Borrower nor any Restricted Subsidiary shall at any time be directly or indirectly liable for any Indebtedness that provides that the holder thereof may (with the passage of time or notice or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its stated maturity upon the occurrence of a default with respect to such Indebtedness of such Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary).

 

Notwithstanding anything to the contrary in this Agreement, (i) no Loan Party shall sell, transfer or dispose of material property (including the grant of an exclusive license of intellectual property) to an Unrestricted Subsidiary and (ii) no Subsidiary may be designated as an Unrestricted Subsidiary or continue as an Unrestricted Subsidiary if it owns material property.

 

Section 6.14 Payment of Taxes. The Borrower will pay and discharge, and will cause each of the Restricted Subsidiaries to pay and discharge, all Taxes imposed upon it or upon its income or profits, or upon any properties belonging to it, in each case on a timely basis, and all lawful claims which, if unpaid, may reasonably be expected to become a lien or charge upon any properties of the Borrower or any of the Restricted Subsidiaries not otherwise permitted under this Agreement; provided that neither the Borrower nor any of the Restricted Subsidiaries shall be required to pay any such Tax or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP or which would not reasonably be expected, individually or in the aggregate, to constitute a Material Adverse Effect.

 

Section 6.15 Nature of Business; Fiscal Year. The Borrower and its Restricted Subsidiaries will engage only in material lines of business substantially similar to those lines of business conducted by the Borrower and its Restricted Subsidiaries on the Closing Date or any business reasonably related, complementary or ancillary thereto. The Borrower and its Restricted Subsidiaries will not change their fiscal year from ending on December 31; provided, however, that the Borrower may, upon written notice to the Administrative Agent, change the financial reporting convention specified above to any other financial reporting convention reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld or delayed), in which case the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement and the other Loan Documents that are necessary in order to reflect such change in financial reporting.

 

Section 6.16 Deposit Accounts, Commodity Accounts and Securities Accounts; Location and Proceeds of Loans.

 

(a) The Borrower will, and will cause each other Loan Party to, cause each of their respective Deposit Accounts, Commodities Accounts or Securities Accounts (in each case, other than Excluded Accounts or Excluded Property) to, within forty-five (45) days (or such later date as the Administrative Agent may agree in its sole discretion) following the opening of any such account, at all times be subject to a Control Agreement in accordance with and to the extent required by the Security Agreement and Collateral and Guarantee Requirement.

 

(b) The Borrower will, and will cause each other Loan Party to, until the proceeds of any Loans are transferred to a third party in a transaction not prohibited by the Loan Documents, hold the proceeds of any Loans made under this Agreement in a Deposit Account and/or a Securities Account that is subject to a Control Agreement (unless such proceeds are transferred to an Excluded Account described in clauses (c) through (d) of the definition thereof to be used exclusively for the purposes described therein).

 

Section 6.17 Maintenance of Ratings. If requested by the Administrative Agent, the Borrower will use commercially reasonable efforts to obtain and maintain (but not maintain any specific rating) a corporate family and/or corporate credit rating in respect of the Borrower and ratings in respect of the credit facilities provided pursuant to this Agreement, in each case, from at least one of S&P and/or Moody’s.

 

Section 6.18 Quarterly Conference Calls. The Borrower will hold quarterly Lender conference calls at reasonable times as requested by the Administrative Agent and, to the extent permitted by applicable Laws, to join quarterly public calls with public equity-holders.

 

 

ARTICLE VII

Negative Covenants

 

From and after the Closing Date and so long as any Lender shall have any Term Commitment hereunder or so long as any Loan or other Obligation hereunder which is accrued and payable shall remain unpaid or unsatisfied (other than contingent indemnification obligations not yet due and payable), the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly:

 

Section 7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:

 

(a) Liens pursuant to any Loan Document;

 

(b) Liens existing on the date hereof and set forth on Schedule 7.01(b);

 

(c) Liens for taxes, assessments or governmental charges (i) which are not overdue for a period of more than thirty (30) days or (ii) which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required in accordance with GAAP;

 

(d) statutory or common law Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of business (i) which secure amounts not overdue for a period of more than thirty (30) days or if more than thirty (30) days overdue, are unfiled (or if filed have been discharged or stayed) and no other action has been taken to enforce such Lien or (ii) which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required in accordance with GAAP;

 

(e) (i) pledges, deposits or Liens arising as a matter of law in the ordinary course of business in connection with workers’ compensation, payroll taxes, unemployment insurance and other social security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Restricted Subsidiary;

 

(f) Liens incurred in the ordinary course of business to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations);

 

(g) easements, rights-of-way, restrictions, covenants, conditions, encroachments, protrusions and other similar encumbrances and minor title defects affecting real property which, in the aggregate, do not in any case materially interfere with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary and any exception on the Mortgage Policies issued in connection with the Mortgaged Property;

 

(h) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);

 

(i) Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens attach concurrently with or within two hundred and seventy (270) days after the acquisition, construction, repair, replacement or improvement (as applicable) of the property subject to such Liens, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, replacements thereof and additions and accessions to such property and the proceeds and the products thereof and customary security deposits, and (iii) with respect to Capitalized Leases, such Liens do not at any time extend to or cover any assets (except for additions and accessions to such assets, replacements and products thereof and customary security deposits) other than the assets subject to such Capitalized Leases; provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender;

 

(j) leases, licenses, subleases or sublicenses and Liens on the property covered thereby, in each case, granted to others in the ordinary course of business which do not (i) interfere in any material respect with the business of the Borrower or any Restricted Subsidiary, taken as a whole, or (ii) secure any Indebtedness;

 

 

(k) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

 

(l) Liens (i) of a collection bank (including those arising under Section 4-210 of the Uniform Commercial Code) on the items in the course of collection and (ii) in favor of a banking or other financial institution arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set off) and which are within the general parameters customary in the banking industry;

 

(m) Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.02(j) to be applied against the purchase price for such Investment and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such Lien;

 

(n) Liens in favor of the Borrower or a Restricted Subsidiary securing Indebtedness permitted under Section 7.03(d) (provided that, solely with respect to Indebtedness required to be subordinated under Section 7.03(d), such Lien shall be subordinated to the Liens on the Collateral securing the Obligations to the same extent);

 

(o) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.13), in each case after the date hereof; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition) and (iii) the Indebtedness secured thereby is permitted under Section 7.03(e);

 

(p) any interest or title of a lessor or sublessor under leases or subleases entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;

 

(q) Liens, if any, arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;

 

(r) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the incurrence of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business;

 

(s) Liens, if any, arising from precautionary Uniform Commercial Code financing statement filings;

 

(t) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

 

(u) any zoning or similar law or right reserved to or vested in any Governmental Body to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary;

 

(v) the modification, replacement, renewal or extension of any Lien permitted by clauses (b), (i) and (o) of this Section 7.01; provided that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03, and (B) proceeds and products thereof; and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 7.03;

 

 

(w) ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Restricted Subsidiaries are located;

 

(x) Liens on property of a Non-Loan Party securing Indebtedness or other obligations of such Non-Loan Party;

 

(y) Liens solely on any cash earnest money deposits made by the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;

 

(z) Liens securing the Convertible Notes permitted pursuant to Section 7.03(q); provided that such Liens may be either a Lien on the Collateral that is pari passu with the Lien securing the Obligations or a Lien ranking junior to the Lien on the Collateral securing the Obligations (but may not be secured by any assets that are not Collateral) and, in any such case, the beneficiaries thereof (or an agent on their behalf) shall have entered into an Acceptable Intercreditor Agreement;

 

(aa) Liens securing Indebtedness permitted pursuant to Section 7.03(k);

 

(bb) other Liens securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed $15,000,000;

 

(cc) Liens on cash deposits securing the PPP Debt in an aggregate principal amount at any time outstanding not to exceed $5,200,000;

 

(dd) with respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by Law;

 

(ee) Liens securing Consumer Warehouse Debt permitted pursuant to Section 7.03(u);

 

(ff) Liens securing Floor Plan Financings permitted pursuant to Section 7.03(p);

 

(gg) Liens securing Indebtedness incurred in connection with a Permitted Acquisition permitted pursuant to Section 7.03(t); and

 

(hh) Liens securing Indebtedness incurred pursuant to the Existing Company Term Loan Agreement pursuant to Section 7.03(w); provided that the beneficiaries thereof (or an agent on their behalf) shall have entered into an Acceptable Intercreditor Agreement.

 

Section 7.02 Investments. Make any Investments, except:

 

(a) Investments by the Borrower or a Restricted Subsidiary in assets that were Cash Equivalents when such Investment was made;

 

(b) loans or advances to officers, directors, managers, partners and employees of the Borrower or its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes, (ii) in connection with such Person’s purchase from the Borrower of Equity Interests of the Borrower and (iii) for purposes not described in the foregoing clauses (i) and (ii), in an aggregate principal amount not to exceed $1,000,000 at any time outstanding with respect to all Investments made pursuant to this Section 7.02(b);

 

(c) asset purchases (including purchases of inventory, supplies and materials) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business;

 

(d) Investments (i) by any Loan Party in any other Loan Party, (ii) by any Non-Loan Party in any Loan Party, (iii) by any Non-Loan Party in any other Non-Loan Party and (iv) by any Loan Party in any Non-Loan Party; provided that (1) provided that (x) any such Investment made pursuant to this clause (iv) in the form of intercompany loans, to the extent evidenced by notes, shall have been pledged (individually or pursuant to a global note) to the Collateral Agent for the benefit of the Lenders to the extent required by the terms of the Collateral and Guarantee Requirements and the Collateral Documents, and (2) the aggregate amount of such Investments in Non-Loan Parties pursuant to clause (iv), including Investments in Immaterial Subsidiaries that are Non-Loan Parties, shall not exceed in an aggregate amount, as valued at cost at the time each such Investment is made and including all related commitments for future Investments, (A) $2,500,000 (excluding any Investments received in respect of, or consisting of, the transfer or contribution of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary), plus (B) an amount equal to any returns of capital or sale proceeds actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such Investment valued at cost at the time such Investment was made);

 

 

(e) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;

 

(f) Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments permitted under Section 7.01, Section 7.03 (other than Section 7.03(c)), Section 7.04, Section 7.05 and Section 7.06, respectively;

 

(g) Investments consisting of any modification, replacement, renewal, reinvestment or extension of any Investment existing on the date hereof; provided that the amount of any Investment permitted pursuant to this Section 7.02(g) is not increased from the amount of such Investment on the Closing Date except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this Section 7.02;

 

(h) Investments in Swap Contracts permitted under Section 7.03(f);

 

(i) promissory notes and other noncash consideration received in connection with Dispositions permitted by Section 7.05;

 

(j) the purchase or other acquisition of property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, or Equity Interests in a Person that, upon the consummation thereof, will be a Restricted Subsidiary of the Borrower (including as a result of a merger or consolidation) (each, a “Permitted Acquisition”) and together with any Investments in Restricted Subsidiaries necessary to consummate a transaction otherwise permitted by this clause (j); provided that:

 

(i) immediately before and immediately after giving Pro Forma Effect to any such purchase or other acquisition, no Event of Default shall have occurred and be continuing,

 

(ii) after giving effect to any such purchase or other acquisition, the Borrower shall be in compliance with the covenant in Section 6.15;

 

(iii) to the extent required by the Collateral and Guarantee Requirement, (A) the property, assets and businesses acquired in such purchase or other acquisition shall become Collateral and (B) any such newly created or acquired Restricted Subsidiary (other than an Excluded Subsidiary) shall become Guarantors, in each case in accordance with Section 6.10;

 

(iv) neither Borrower nor any Restricted Subsidiary will incur or assume any Indebtedness in connection with the proposed acquisition other than Indebtedness permitted hereunder;

 

(v) concurrently with the closing of such purchase or other acquisition, the Loan Parties have provided to Administrative Agent a certification (x) stating that all of the conditions for a Permitted Acquisition under this clause (j) have been or will be satisfied in connection with such purchase or other acquisition and (y) including a certificate demonstrating that, upon giving effect to such acquisition on a Pro Forma Basis, the Borrower would be in compliance with the financial covenants set forth in Section 7.10(a) and Section 7.10(b) as of the most recently ended Test Period;

 

(vi) such acquisition is (i) not a hostile or contested acquisition or (ii) the board of directors (or other comparable governing body) of the target shall have approved the transaction;

 

(vii) with respect to any proposed acquisition in excess of $20,000,000, the Administrative Agent shall have received (a) at least fifteen (15) Business Days prior to the consummation of such proposed acquisition, a description of such proposed acquisition, (b) at least ten (10) Business Days prior to the consummation of such proposed acquisition, (x) historical financial information for the target, (y) a quality of earnings report (if obtained) and (z) a draft of the acquisition agreement (together to the extent available at such time with all exhibits and schedules thereto and, to the extent required in the acquisition agreement and obtained at such time, all required regulatory and third party approvals) and (c) no later than three (3) Business Days after the acquisition is consummated, the executed acquisition agreement; and

 

(viii) the aggregate amount of Investments in a Person that does not become an Loan Party as a result of a Permitted Acquisition and the aggregate amount of assets acquired by Persons that are not Loan Parties as a result of a Permitted Acquisition shall not, together with Investments in Subsidiaries that are not Loan Parties made pursuant to Section 7.02(d), exceed $2,500,000.

 

 

(k) the Transactions (including any earn-out contemplated by the Acquisition Agreement);

 

(l) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;

 

(m) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;

 

(n) advances of payroll payments to employees in the ordinary course of business;

 

(o) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of (after giving effect to any other such loans or advances or Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made to such direct or indirect parent in accordance with Section 7.06; provided that any such loan or advance shall reduce the amount of such applicable Restricted Payment thereafter permitted under Section 7.06 by a corresponding amount (if such applicable provision of Section 7.06 contains a maximum amount);

 

(p) Investments held by a Restricted Subsidiary acquired after the Closing Date or of a corporation or company merged into the Borrower or merged or consolidated with a Restricted Subsidiary in accordance with Section 7.04 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;

 

(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary in respect of leases (other than Capitalized Leases) or of other obligations of any Restricted Subsidiary that do not constitute Indebtedness, in each case entered into in the ordinary course of business;

 

(r) other Investments (other than Investments in and non-Guarantor Restricted Subsidiaries and Unrestricted Subsidiaries) in an aggregate amount, as valued at cost at the time each such Investment is made and including all related commitments for future Investments, when combined with any Investments made pursuant to Section 7.02(u), not exceeding (i) $7,500,000 at any one time outstanding for the period prior to the day that is sixty (60) days after the formation of a Consumer Warehouse Subsidiary and (ii) $5,000,000 at any one time outstanding for the period on and after the sixtieth (60^th) day subsequent to the formation of a Consumer Warehouse Subsidiary;

 

(s) contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Borrower;

 

(t) Investments in any Consumer Warehouse Subsidiary in an amount not to exceed $5,000,000 at any one time outstanding;

 

(u) Investments in consumer loans and related assets by RumbleOn Finance in the ordinary course of business and in an amount not to exceed (i) $7,500,000 at any one time outstanding for the period prior to the day that is sixty (60) days after the formation of a Consumer Warehouse Subsidiary and (ii) $2,500,000 at any one time outstanding for the period on and after the sixtieth (60^th) day subsequent to the formation of a Consumer Warehouse Subsidiary; and

 

(v) Investments by any Consumer Warehouse Subsidiary in Consumer Warehouse Assets; and

 

(w) Investments in non-Wholly Owned Restricted Subsidiaries and non-Guarantor Restricted Subsidiaries existing on the Closing Date and set forth on Schedule 7.02 and any modification, replacement, renewal, reinvestment or extension thereof in an amount not to exceed $10,000,000 in the aggregate at any time.

 

 

For purposes of determining compliance with this Section 7.02, in the event that an Investment meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (w) above, the Borrower may, in its sole discretion, classify and reclassify or later divide, classify or reclassify such Investment (or any portion thereof) and will only be required to include the amount and type of such Investments in one or more of the above clauses.

 

Section 7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:

 

(a) Indebtedness of the Borrower and any of its Subsidiaries under the Loan Documents;

 

(b) (i) Surviving Indebtedness listed on Schedule 7.03(b) and (ii) any Permitted Refinancing of any of the foregoing;

 

(c) Guarantee Obligations (i) by any Loan Party in respect of Indebtedness of any other Loan Party, (ii) by any non-Loan Party in respect of the Indebtedness of any other non-Loan Party, and (iii) by any Loan Party in respect of the Indebtedness of any non-Loan Party, in each case to the extent that the Indebtedness being guaranteed is otherwise permitted hereunder; provided that, if the Indebtedness being guaranteed is subordinated to the Obligations, such Guarantee Obligation shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;

 

(d) Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower or any other Restricted Subsidiary to the extent constituting an Investment permitted by Section 7.02; provided that (x) all such Indebtedness of any Loan Party owed to any Person that is not a Loan Party shall (x) be subject to the subordination terms set forth in Section 3.01 of the Guaranty and (y) not exceed $2,500,000 in an aggregate principal amount at any one time outstanding;

 

(e) (i) Attributable Indebtedness and other Indebtedness financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets (provided that such Indebtedness is incurred concurrently with or within two hundred seventy (270) days after the applicable acquisition, construction, repair, replacement or improvement) and (ii) any Permitted Refinancing thereof; provided that the aggregate principal amount of Indebtedness (including without limitation Attributable Indebtedness, but excluding Attributable Indebtedness incurred pursuant to clause (ii)) under this Section 7.03(e) does not exceed $5,000,000 outstanding at any time;

 

(f) Indebtedness in respect of Swap Contracts (i) entered into to hedge or mitigate risks to which the Borrower or any Subsidiary has actual or anticipated exposure (other than those in respect of shares of capital stock or other equity ownership interests of the Borrower or any Subsidiary), (ii) entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary and (iii) entered into to hedge commodities, currencies, general economic conditions, raw materials prices, revenue streams or business performance;

 

(g) Indebtedness representing deferred compensation to employees of the Borrower and its Restricted Subsidiaries incurred in the ordinary course of business;

 

(h) Indebtedness to current or former officers, directors, partners, managers, consultants and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Borrower permitted by Section 7.06 in an aggregate amount not to exceed $1,000,000 at any one time outstanding;

 

(i) Unsecured Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in a Permitted Acquisition, any other Investment expressly permitted hereunder or any Disposition, in each case, to the extent constituting indemnification obligations or obligations in respect of purchase price (including earn-outs) or other similar adjustments;

 

(j) Indebtedness consisting of obligations of the Borrower or any of its Restricted Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions and Permitted Acquisitions or any other Investment expressly permitted hereunder;

 

(k) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case incurred in the ordinary course;

 

 

(l) Indebtedness consisting of (a) the financing of insurance premiums or (b) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;

 

(m) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Borrower or any of its Restricted Subsidiaries or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;

 

(n) Indebtedness supported by a standby or commercial letter of credit in a principal amount not to exceed the face amount of such letter of credit;

 

(o) (i) other unsecured Indebtedness of the Borrower or any Guarantor, so long as the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) as of the end of the most recent Test Period is not greater than 2.25:1.00; provided further that, in the case of any Indebtedness incurred under this clause (o), (1) such Indebtedness is not guaranteed by any person that is not a Guarantor, (2) such Indebtedness shall not mature prior to the date that is 180 days after the Maturity Date of the Term Loans or have a Weighted Average Life to Maturity less than the Weighted Average Life to Maturity of the Term Loans plus 180 days, (3) such Indebtedness shall not have mandatory prepayment, redemption or offer to purchase events more onerous than those applicable to the Term Loans and (4) the other terms and conditions of such Indebtedness (excluding pricing and optional prepayment or redemption terms) reflect market terms and conditions at the time of incurrence or issuance of such Indebtedness and (ii) any Permitted Refinancing thereof;

 

(p) Indebtedness in respect of any Floor Plan Financings in an aggregate principal amount not to exceed 100% of the cost to the Borrower of the Floor Plan Units being financed by such Floor Plan Financings (consistent with historical practice);

 

(q) (i) Indebtedness in respect of the Convertible Notes existing as of the Closing Date in an aggregate principal amount not to exceed $40,000,000 at any one time outstanding and (ii) any unsecured Permitted Refinancing thereof (so long as the terms of such Permitted Refinancing do not permit any cash payments prior to the maturity thereof);

 

(r) additional Indebtedness in an aggregate principal amount not to exceed $12,500,000 at any one time outstanding;

 

(s) PPP Debt in an aggregate principal amount not to exceed $5,200,000 at any one time outstanding;

 

(t) (i) Indebtedness of any Person that becomes a Restricted Subsidiary after the date hereof pursuant to a Permitted Acquisition; provided that (A) such Indebtedness exists at the time such Person becomes a Restricted Subsidiary and is not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary and (B) the aggregate principal amount of Indebtedness permitted by this clause (f) shall not exceed $5,000,000 at any time outstanding, and (ii) any Permitted Refinancing of Indebtedness incurred under the foregoing clause (t)(i);

 

(u) Consumer Warehouse Debt incurred by any Consumer Warehouse Subsidiary in an aggregate principal amount not to exceed $25,000,000 at any one time outstanding;

 

(v) Guarantee Obligations of RumbleOn Finance in respect of any Consumer Warehouse Debt in an aggregate amount not to exceed $2,500,000 at any one time outstanding;

 

(w) Indebtedness incurred pursuant to the Existing Company Term Loan Agreement in an aggregate principal amount not to exceed $5,000,000 at any one time outstanding; and

 

(x) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (x) above.

 

For purposes of determining compliance with this Section 7.03, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (x) above, the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (x) all Indebtedness outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03 and (y) all Surviving Indebtedness listed on Schedule 7.03(b) will be deemed to have been incurred in reliance only on the exception set forth in clause (b) of this Section 7.03.

 

 

The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 7.03.

 

Section 7.04 Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:

 

(a) any Restricted Subsidiary may merge or amalgamate with (i) the Borrower (provided that the resulting entity shall succeed as a matter of law to all of the Obligations of the Borrower) or (ii) any one or more other Restricted Subsidiaries (provided that when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, a Loan Party shall be a continuing or surviving Person, as applicable, or the resulting entity shall succeed as a matter of law to all of the Obligations of such Loan Party);

 

(b) (i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party, (ii) (A) any Restricted Subsidiary may liquidate, dissolve or wind up, or (B) any Restricted Subsidiary may change its legal form, in each case, if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;

 

(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another Restricted Subsidiary or to the Borrower; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.02 and Section 7.03, respectively;

 

(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or amalgamate with any other Person (1) in a transaction in which the Borrower is the continuing or surviving entity of such transaction or (2) in a transaction in which such other Person is the surviving or continuing entity of such transaction (such person, the “Successor Borrower”); provided that, in the case of this clause (2), (i) such Successor Borrower is organized under the laws of the United States; (ii) such Successor Borrower shall assume the Obligations of the Borrower under the Loan Documents; (iii) each Guarantor shall have confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under the Loan Documents; (iv) each Guarantor shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under the Loan Documents; (v) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under the Loan Documents; (vi) the Borrower shall have delivered information reasonably requested in writing by the Administrative Agent (or any Lender through the Administrative Agent) reasonably required by regulatory authorities under “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act of the type delivered on the Closing Date pursuant to Section 4.01(g) and (vii) the Borrower shall have delivered of an officer’s certificate certifying the compliance with the foregoing;

 

(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.10;

 

(f) the Acquisition may be consummated; and

 

(g) so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected.

 

 

Section 7.05 Dispositions. Make any Disposition, except:

 

(a) Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries (in each case as determined by the Borrower in good faith);

 

(b) Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any registrations or any applications for registration of any immaterial IP Rights to lapse or go abandoned in the ordinary course of business);

 

(c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased);

 

(d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party, (ii) such Disposition shall be treated as an Investment and permitted under Section 7.02, or (iii) such Disposition shall consist of the transfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary;

 

(e) Dispositions permitted by Section 7.02 (other than Section 7.02(f)), Section 7.04 (other than Section 7.04(g)) and Section 7.06 and Liens permitted by Section 7.01 (other than Section 7.01(m));

 

(f) Dispositions in the ordinary course of business of Cash Equivalents;

 

(g) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;

 

(h) transfers of property subject to Casualty Events;

 

(i) Dispositions (i) of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof, in an amount not to exceed $1,000,000 per calendar year, (ii) of Consumer Warehouse Assets by a Consumer Warehouse Subsidiary in the ordinary course of business and (iii) of consumer loans and related assets by RumbleOn Finance in the ordinary course of business;

 

(j) the unwinding of any Swap Contract pursuant to its terms;

 

(k) Permitted Sale Leasebacks;

 

(l) Dispositions not otherwise permitted pursuant to this Section 7.05; provided that (i) such Disposition shall be for fair market value as reasonably determined by the Borrower in good faith, (ii) the Borrower or any of its Restricted Subsidiaries shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents (provided, however, that for the purposes of this clause (l)(ii), the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Borrower or any of its Restricted Subsidiaries (other than Specified Debt) and the valid release of the Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee that are converted by such Borrower or any of its Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness (other than Specified Debt) of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent that the Borrower and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with such Disposition and (D) aggregate non-cash consideration received by the Borrower and its Restricted Subsidiaries for all Dispositions under this clause (m) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed $1,000,000 in any fiscal year (net of any non-cash consideration converted into cash and Cash Equivalents received in respect of any such non-cash consideration) and calculated on a Pro Forma Basis); (iii) the Borrower or the applicable Restricted Subsidiary complies with the applicable provisions of Section 2.03(b)(ii); and (iv) no Default or Event of Default exists and is continuing at the time of such Disposition and no Default for Event of Default would occur as a result of such Disposition (other than with respect to a Disposition made pursuant to a legally binding commitment entered into at a time when no Event of Default existed and was continuing or would have resulted from such Disposition);

 

 

(m) the Borrower and its Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business;

 

(n) Dispositions of non-core or obsolete assets acquired in connection with Permitted Acquisitions; and

 

(o) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater fair market value of usefulness to the business of the Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower.

 

To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrower or any Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.

 

Section 7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except:

 

(a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly-Owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);

 

(b) (i) the Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Borrower may declare and make dividend payments or other distributions payable solely in Qualified Equity Interests;

 

(c) Restricted Payments made on the Closing Date to consummate the Transactions (including any earn-out in connection with the Transactions);

 

(d) to the extent constituting Restricted Payments, the Borrower and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or Section 7.07(e);

 

(e) repurchases of Equity Interests in the ordinary course of business in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;

 

(f) so long as the Borrower is in compliance with the Financial Covenants on a Pro Forma Basis, the Borrower or any Restricted Subsidiary may, in good faith, pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Borrower or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of the Borrower, the Borrower or any Subsidiary; provided that such payments do not exceed $1,000,000 in any fiscal year; provided, further, that cancellation of Indebtedness owing to the Borrower or any of its Subsidiaries from members of management of the Borrower, or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement;

 

 

(g) the Borrower or any Restricted Subsidiary may pay any dividend or distribution within 30 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to this Section 7.06(h) shall be deemed to have utilized capacity under such other provision of this Agreement);

 

(h) the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; and

 

(i) the Borrower or any Restricted Subsidiary may make additional Restricted Payments; provided that at the time of any such Restricted Payment, (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Consolidated Total Leverage Ratio of the Borrower as of the most recently ended Test Period (calculated on a Pro Forma Basis) would be no greater than 2.00:1.00.

 

Section 7.07 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in the ordinary course of business, other than:

 

(a) transactions between or among the Borrower or any Restricted Subsidiary or any entity that becomes a Restricted Subsidiary as a result of such transaction;

 

(b) transactions on terms not less favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate;

 

(c) the Transactions and the payment of fees and expenses related to the Transaction;

 

(d) the issuance of Equity Interests to any officer, director, manager, employee or consultant of the Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower in connection with the Transaction;

 

(e) equity issuances, repurchases, redemptions, retirements or other acquisitions or retirements of Equity Interests by the Borrower or any Restricted Subsidiary permitted under Section 7.06;

 

(f) loans and other transactions by and among the Borrower and/or one or more Subsidiaries to the extent permitted under this Article VII;

 

(g) employment and severance arrangements between the Borrower or any of its Subsidiaries and their respective officers and employees in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements;

 

(h) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, officers, employees and consultants of the Borrower and its Restricted Subsidiaries or any direct or indirect parent of the Borrower in the ordinary course of business to the extent attributable to the ownership or operation of the Borrower and its Restricted Subsidiaries;

 

(i) transactions pursuant to agreements in existence on the Closing Date and set forth on Schedule 7.07 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect;

 

(j) dividends and other distributions permitted under Section 7.06; and

 

(k) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the definition of “Unrestricted Subsidiary”; provided that such transactions were not entered into in contemplation of such redesignation.

 

Section 7.08 Prepayments, Etc., of Indebtedness.

 

(a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner any Specified Debt (it being understood that payments of regularly scheduled interest, AHYDO payments and mandatory prepayments under any such Specified Debt Documents shall not be prohibited by this clause), except for (i) the refinancing thereof with the Net Cash Proceeds of any such Indebtedness (to the extent such Indebtedness constitutes a Permitted Refinancing), (ii) the conversion thereof to Equity Interests (other than Disqualified Equity Interests) of the Borrower or any of its direct or indirect parents, (iii) prepayments, redemptions, purchases, defeasances and other payments of any PPP Debt prior to its scheduled maturity in an aggregate amount not exceed $5,200,000 (provided that, at the time of any such payment, no Event of Default shall have occurred and be continuing or would result therefrom) and (iv) other prepayments, redemptions, purchases, defeasances and other payments thereof prior to their scheduled maturity (provided that, at the time of such prepayments, redemptions, purchases, defeasances or other payments, (x) no Default or Event of Default has occurred and is continuing or would result therefrom and (y) the Consolidated Total Leverage Ratio of the Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 2.00:1.00).

 

 

(b) Amend, modify or change in any manner materially adverse to the interests of the Lenders any term or condition of any Specified Debt Documents without the consent of the Required Lenders (not to be unreasonably withheld or delayed).

 

Section 7.09 Negative Pledge and Subsidiary Distributions. Enter into any agreement, instrument, deed or lease which prohibits or limits (i) the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of their respective properties or revenues, whether now owned or hereafter acquired, for the benefit of the Secured Parties with respect to the Obligations or under the Loan Documents or (ii) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests; provided that the foregoing shall not apply to:

 

(a) restrictions and conditions imposed by (A) law or (B) any Loan Document;

 

(b) restrictions and conditions existing on the Closing Date or to any extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;

 

(c) customary restrictions and conditions arising in connection with any Disposition permitted by Section 7.05;

 

(d) customary provisions in leases, licenses and other contracts restricting the assignment thereof;

 

(e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies only to the property securing such Indebtedness;

 

(f) any restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition), provided that such agreement was not entered into in contemplation of such Person becoming a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply to the Borrower or any other Restricted Subsidiary;

 

(g) any restrictions or conditions in any Indebtedness incurred after the Closing Date that are permitted pursuant to Section 7.03 to the extent such restrictions or conditions, other than conditions and restrictions imposed by any agreement relating to Indebtedness incurred pursuant to Section 7.03(p), are no more restrictive than the restrictions and conditions in the Loan Documents or, in the case of Specified Debt, are market terms at the time of issuance or, in the case of Indebtedness of any Non-Loan Party, are imposed solely on such Non-Loan Party and its Subsidiaries, provided that any such restrictions or conditions permit compliance with the Collateral and Guarantee Requirement and Section 6.10;

 

(h) any restrictions on cash or other deposits imposed by agreements entered into in the ordinary course of business;

 

(i) customary provisions in shareholders agreements, joint venture agreements, organizational documents or similar binding agreements relating to any non-Wholly-Owned Restricted Subsidiary and other similar agreements applicable to non-Wholly-Owned Restricted Subsidiaries permitted under Section 7.02 and applicable solely to such non-Wholly-Owned Restricted Subsidiary and the Equity Interests issued thereby;

 

(j) customary restrictions in leases, subleases, licenses or asset sale agreements and other similar contracts otherwise permitted hereby so long as such restrictions may relate to the assets subject thereto;

 

(k) customary provisions restricting assignment of any agreement entered into in the ordinary course of business; and

 

(l) customary net worth provisions contained in real property leases entered into by Subsidiaries of the Borrower, so long as the Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of the Borrower and its Subsidiaries to meet their ongoing obligation.

 

 

Section 7.10 Financial Covenants.

 

(a) Permit the Consolidated Total Net Leverage Ratio for any Test Period to be greater than 4.25 to 1.00 commencing with the Test Period ending on the last day of the first full fiscal quarter following the Closing Date.

 

(b) Permit the Consolidated Senior Secured Net Leverage Ratio for any Test Period to be greater than 3.75 to 1.00 commencing with the Test Period ending on the last day of the first full fiscal quarter following the Closing Date.

 

(c) Permit Liquidity for any Test Period to be less than $25,000,000 commencing with the Test Period ending on the last day of the first full fiscal quarter following the Closing Date.

 

Section 7.11 Anti-Terrorism Laws. Permit (i) any Covered Entity to become a Sanctioned Person, (ii) any Covered Entity Controlling Person to become a Sanctioned Person and to remain such a Sanctioned Person for a period of more than one hundred eighty (180) days, (iii) any Covered Entity, either in its own right or through any third party, to (A) have any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (B) do business in or with, or derive any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (C) engage in any dealings or transactions prohibited by any Anti-Terrorism Law, (iv) any Covered Entity or any Covered Entity Controlling Person, either in its own right or through any third party, to use the Loans to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law, (v) the funds used by any Covered Entity or any Covered Entity Controlling Person, either in its own right or through any third party, to repay the Obligations to be derived from any unlawful activity, (vi) any Covered Entity to fail to comply with all Anti-Terrorism Laws, and/or (vii) any Covered Entity to fail to promptly notify the Administrative Agent in writing upon the occurrence of a Reportable Compliance Event.

 

ARTICLE VIII

Events of Default and Remedies

 

Section 8.01 Events of Default. Any of the following events referred to in any of clauses (a) through (k) inclusive of this Section 8.01 shall constitute an “Event of Default”:

 

(a) Non-Payment. Any Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of, or premium (including any Call Premium) on, any Loan or (ii) within five (5) Business Days after the same becomes due, any interest on any Loan or any other amount payable hereunder or with respect to any other Loan Document; or

 

(b) Specific Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of (A) Section 6.01, Section 6.02(a), Section 6.02(d), Section 6.02(e) and Section 6.02(f) (after, in each case, a thirty (30) calendar day grace period, which may be exercised a total of once per fiscal quarter) and (B) Section 6.03(a) or Section 6.04 (solely with respect to the Borrower), Section 6.11, Section 6.12(c), Section 6.13, Section 6.15 or Article VII; or

 

(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed, such failure continues for thirty (30) days; or

 

(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other Loan Document, or in any document required to be delivered in connection herewith or therewith shall be incorrect or misleading in any material respect (or, in the case of any representation or warranty set forth in Section 5.18 in any respect) when made or deemed made or in all respects with respect to any representation, warranty, certification or statement of fact qualified by “materiality,” “Material Adverse Effect” or similar language when made or deemed made; provided that this clause (d) shall be limited on the Closing Date to the representations and warranties referred to in Section 4.01(f); or

 

 

(e) Cross-Default. Any Loan Party or any Restricted Subsidiary (A) fails to make any payment beyond the applicable grace period with respect thereto, if any (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder) having an aggregate principal amount exceeding the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness, or any other event occurs (other than (i) with respect to Indebtedness consisting of Swap Contracts, termination events or equivalent events pursuant to the terms of such Swap Contracts and (ii) any event requiring prepayment pursuant to customary asset sale provisions), the effect of which default or other event is to cause all such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem all such Indebtedness to be made, prior to its stated maturity; provided that this clause (e)(B) shall not apply to secured Indebtedness that becomes due (or requires an offer to purchase) as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; or

 

(f) Insolvency Proceedings, Etc. Any Loan Party or any of the Restricted Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, interim receiver, receiver and manager, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, interim receiver, receiver and manager, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for thirty (30) calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days; or an order for relief is entered in any such proceeding; or

 

(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any Restricted Subsidiary admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of the Loan Parties, taken as a whole, and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or

 

(h) Judgments. There is entered against any Loan Party or any Restricted Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance) and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period of thirty (30) consecutive days; or

 

(i) Invalidity of Collateral Documents. Any Collateral Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder (including as a result of a transaction permitted under Section 7.04 or Section 7.05) or as a result of acts or omissions by the Administrative Agent or any Lender or the satisfaction in full of all the Obligations, ceases to be in all material respects in full force and effect or ceases to create a valid and perfected lien, with the priority set forth in the Collateral and Guarantee Requirement, on a material portion of the Collateral covered thereby; or any Loan Party contests in writing the validity or enforceability of any material provision of any Collateral Document; or any Loan Party denies in writing that it has any or further liability or obligation under any Collateral Document (other than as a result of repayment in full of the Obligations and termination of the Aggregate Commitments), or purports in writing to revoke or rescind any Collateral Document; or

 

(j) Change of Control. There occurs any Change of Control; provided, however, that any Change of Control resulting from any Disposition of Equity Interests of the Borrower held by any RideNow Permitted Holder or Oaktree and its Affiliates pursuant to a negotiated transaction with a third party shall not mature into an Event of Default until thirty (30) days following the occurrence of such Change of Control (it being understood and agreed that any such Default may not be cured as a result of a transaction or series of transaction whereby the original Change of Control ceases to exist).

 

(k) ERISA. (i) An ERISA Event occurs which has resulted or could reasonably be expected to result in liability of a Loan Party in an aggregate amount which could reasonably be expected to result in a Material Adverse Effect, or (ii) a Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount which could reasonably be expected to result in a Material Adverse Effect.

 

 

Section 8.02 Remedies Upon Event of Default.

 

(a) If any Event of Default occurs and is continuing, the Administrative Agent, at the request of the Required Lenders, shall take any or all of the following actions:

 

(i) declare the commitment of each Lender to make Loans to be terminated, whereupon such commitments shall be terminated;

 

(ii) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document (including, without limitation, any Call Premium (in each case, determined as if the Loans were prepaid at the time of such acceleration at the option of the Borrower pursuant to the terms of Section 2.03(e) hereunder)) to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; and

 

(iii) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law;

 

provided that upon the occurrence of an Event of Default under Section 8.01(f) with respect to the Borrower, the obligation of each Lender to make Loans shall automatically terminate and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid (including, without limitation, any Call Premium (in each case, determined as if the Loans were prepaid at the time of such acceleration at the option of the Borrower pursuant to the terms of Section 2.03(e) hereunder)) shall automatically become due and payable, in each case without further act of the Administrative Agent or any Lender.

 

(b) Without limiting the generality of the foregoing, it is understood and agreed that if, prior to the Maturity Date, (i) the Loans are accelerated or otherwise become due, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of a bankruptcy or insolvency related event (including acceleration of claims by operation of law)) or (ii) the board of directors (or similar governing body) or any Person having Control of any Loan Party (or any committee thereof) adopts or causes the adoption or occurrence of any resolution, written consent or other authorization of any action to approve any bankruptcy or insolvency related event and such Loan Party actually commences such bankruptcy or insolvency related event (each of the foregoing clauses (i) and (ii), a “Specified Event of Default”),the Call Premium (if any) that would have applied if, at the time of such Specified Event of Default, the Borrower had paid, repaid, refinanced, redeemed, substituted or replaced any or all of the Loans as contemplated in Section 2.03(e), will also be automatically and immediately due and payable without further action or notice, and the Call Premium shall constitute part of the Obligations in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of and compensation for the Lenders’ loss of an investment opportunity (but not as a penalty) and not as a result thereof. Any Call Premium payable hereunder shall be presumed to be the liquidated damages (and not, for the avoidance of doubt, unmatured interest or a penalty) sustained by the Lenders as the result of such Specified Event of Default and the Borrower and the other Loan Parties agree that the Call Premium is reasonable under the circumstances currently existing. The Call Premium shall be immediately due and payable, without further action or notice, without regard to whether such Specified Event of Default is voluntary or involuntary, or whether payment occurs pursuant to a motion, plan of reorganization, or otherwise, and without regard to whether the Loans and other Obligations are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other similar means.

 

(c) THE BORROWER AND EACH OTHER LOAN PARTY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING CALL PREMIUM IN CONNECTION WITH ANY SUCH SPECIFIED EVENT OF DEFAULT.

 

(d) The Borrower and each other Loan Party expressly agrees (to the fullest extent that it may lawfully do so) that: (i) the Call Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (ii) the Call Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (iii) there has been a course of conduct between the Lenders and the Borrower and the other Loan Parties giving specific consideration in this transaction for such agreement to pay the Call Premium; and (iv) the Borrower and each other Loan Party shall each be estopped hereafter from claiming differently than as agreed to in this clause (d).

 

(e) The Borrower and each other Loan Party expressly acknowledges that its agreement to pay the Call Premium to the Lenders as herein described is a material inducement to the Lenders to provide the Commitments and make the Loans.

 

 

Section 8.03 Exclusion of Immaterial Subsidiaries. Solely for the purpose of determining whether a Default has occurred under clause (f) or (g) of Section 8.01, any reference in any such clause to any Restricted Subsidiary or Loan Party shall be deemed not to include any Subsidiary that is an Immaterial Subsidiary or at such time could, upon designation by the Borrower, become an Immaterial Subsidiary affected by any event or circumstances referred to in any such clause unless the Consolidated EBITDA of such Subsidiary together with the Consolidated EBITDA of all other Subsidiaries in Default pursuant to an event or circumstance referred to in such clause, shall exceed 5% of the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries.

 

Section 8.04 Application of Funds . If the circumstances described in Section 2.10(g) have occurred, or after the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable), including in any bankruptcy or insolvency proceeding, any amounts received on account of the Obligations shall be applied by the Administrative Agent, subject to any Acceptable Intercreditor Agreement then in effect, in the following order:

 

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest, but including Attorney Costs payable under Section 10.04 and amounts payable under Article III) payable to each Agent in its capacity as such;

 

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs payable under Section 10.04 and amounts payable under Article III), ratably among them in proportion to the amounts described in this clause Second payable to them;

 

Third, to payment of that portion of the Obligations constituting accrued and unpaid interest (including, but not limited to, post-petition interest), ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;

 

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Secured Parties in proportion to the respective amounts described in this clause Fourth;

 

Fifth, to the payment of all other Obligations of the Loan Parties that are due and payable pursuant to the Loan Documents to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and

 

Last, the balance, if any, after all of the Obligations have been paid in full, to the Borrower or as otherwise required by Law.

 

ARTICLE IX

Administrative Agent and Other Agents

 

Section 9.01 Appointment and Authorization of Agents.

 

(a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, the Administrative Agent shall have no duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

 

 

(b) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest, charge or other Lien created by the Collateral Documents for and on behalf of or on trust for) such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX (including Section 9.07, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative Agent to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of the Loan Documents and the Collateral Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders.

 

Section 9.02 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder) by or through Affiliates, agents, employees or attorneys-in-fact, such sub-agents as shall be deemed necessary by the Administrative Agent, and shall be entitled to advice of counsel, both internal and external, and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or sub-agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.

 

Section 9.03 Liability of Agents. No Agent-Related Person shall (a) be liable to any Lender for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby, including their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent (except for its own gross negligence or willful misconduct, as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), (b) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or the perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder or (c) except pursuant to Section 10.07 if such Agent-Related Person is a Lender, be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Specified Competitors; further, without limiting the generality of the foregoing clause (c), no Agent-Related Person except pursuant to Section 10.07 if such Agent-Related Person is a Lender, shall (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Specified Competitor or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Specified Competitor. No Agent-Related Person shall be under any obligation to any Lender or participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof. No Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that such Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that such Agent shall not be required to take any action that, in its judgment or the judgment of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), or in the absence of its own gross negligence or willful misconduct, as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein.

 

 

Section 9.04 Reliance by Agents.

 

(a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, request, consent, certificate, instrument, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any Loan Party), independent accountants and other experts selected by such Agent and shall not incur any liability for relying thereon. Each Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders.

 

(b) For purposes of determining compliance with the conditions specified in Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

 

Section 9.05 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default and stating that such notice is a “notice of default.” The Administrative Agent will notify the Lenders of its receipt of any such notice. Subject to the other provisions of this Article IX, the Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders in accordance with Article VIII; provided that unless and until the Administrative Agent has received any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, to the extent it has the right to do so with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders.

 

Section 9.06 Credit Decision; Disclosure of Information by Agents. Each Lender acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Lender represents to each Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of an investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower and the other Loan Parties hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrower and the other Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent herein, such Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent-Related Person.

 

 

Section 9.07 Indemnification of Agents. Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), pro rata, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it in its capacity as an Agent-Related Person; provided that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting from such Agent-Related Person’s own gross negligence or willful misconduct, as determined by the final and non-appealable judgment of a court of competent jurisdiction; provided that no action taken in accordance with the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.07. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrower, provided that such reimbursement by the Lenders shall not affect the Borrower’s continuing reimbursement obligations with respect thereto, if any. The undertaking in this Section 9.07 shall survive termination of the Aggregate Commitments, the payment of all other Obligations and the resignation of the Administrative Agent.

 

Section 9.08 Agents in their Individual Capacities. Oaktree and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with each of the Loan Parties and their respective Affiliates as though Oaktree were not the Administrative Agent hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, Oaktree or its Affiliates may receive information regarding any Loan Party or any Affiliate of a Loan Party (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them. With respect to its Loans, Oaktree shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” include Oaktree in its individual capacity.

 

Section 9.09 Successor Agents. The Administrative Agent may resign as the Administrative Agent and Collateral Agent upon thirty (30) days’ notice to the Lenders and the Borrower. If the Administrative Agent resigns under this Agreement, the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which appointment of a successor agent shall require the consent of the Borrower at all times other than during the existence of an Event of Default (which consent of the Borrower shall not be unreasonably withheld or delayed). If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and the Borrower, a successor agent from among the Lenders. Upon the acceptance of its appointment as successor agent hereunder, the Person acting as such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent and Collateral Agent and the term “Administrative Agent” shall mean such successor administrative agent and/or supplemental administrative agent, as the case may be (and the term “Collateral Agent” shall mean such successor collateral agent and/or supplemental agent, as described in Section 9.01(b)), and the retiring Administrative Agent’s appointment, powers and duties as the Administrative Agent and Collateral Agent shall be terminated. After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent and Collateral Agent, the provisions of this Article IX and Section 10.04 and Section 10.05 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent and Collateral Agent under this Agreement. If no successor agent has accepted appointment as the Administrative Agent and Collateral Agent by the date which is thirty (30) days following the retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent and Collateral Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above (except that in the case of any collateral security held by the Collateral Agent on behalf of the Lenders under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed). Upon the acceptance of any appointment as the Administrative Agent and Collateral Agent hereunder by a successor and upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may reasonably request, in order to (a) continue the perfection of the Liens granted or purported to be granted by the Collateral Documents or (b) otherwise ensure that the Collateral and Guarantee Requirement is satisfied, the Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges, and duties of the retiring Administrative Agent and Collateral Agent, and the retiring Administrative Agent and Collateral Agent shall, to the extent not previously discharged, be discharged from its duties and obligations under the Loan Documents.

 

 

Section 9.10 Administrative Agent May File Proofs of Claim; Credit Bidding. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:

 

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 2.07 and Section 10.04) allowed in such judicial proceeding; and

 

(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and

 

(c) any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due to the Administrative Agent under Section 2.07 and Section 10.04.

 

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

 

The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject and (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in clauses (a) through (f) of Section 10.01 of this Agreement), (iii) the Administrative Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any Equity Interests and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action, and (iv) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.

 

 

Section 9.11 Collateral and Guaranty Matters. The Lenders irrevocably agree:

 

(a) that any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document shall be automatically released (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than contingent indemnification obligations not yet accrued and payable), (ii) at the time the property subject to such Lien is transferred or to be transferred as part of or in connection with any transfer permitted hereunder or under any other Loan Document to any Person other than any other Loan Party, unless a primary purpose of such transaction (as determined by the Borrower in good faith) was to release such Subsidiary Loan Party from its obligations under the Loan Documents, (iii) subject to Section 10.01, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders, (iv) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guaranty pursuant to clause (c) below or (v) if the property subject to such Lien becomes Excluded Property;

 

(b) to release or subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Sections 7.01(i) and (o); and

 

(c) if any Subsidiary Guarantor ceases to be a Restricted Subsidiary, or becomes an Excluded Subsidiary, in each case as a result of a transaction or designation permitted hereunder (as certified in writing delivered to the Administrative Agent by a Responsible Officer of the Borrower), (x) such Subsidiary shall be automatically released from its obligations under the Guaranty and (y) any Liens granted by such Subsidiary or Liens on the Equity Interests of such Subsidiary (to the extent such Equity Interests have become Excluded Property or are being transferred to a Person that is not a Loan Party) shall be automatically released; provided that in the case of any such release relating to a transaction or designation made on the basis of clause (iv) of “Excluded Equity” or clause (g) of “Excluded Subsidiary”, such release shall not be permitted if a primary purpose of such transaction or designation (as determined by the Borrower in good faith) was to release such Subsidiary Guarantor from its obligations under the Loan Documents.

 

Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.11. In each case as specified in this Section 9.11, the Administrative Agent will promptly (and each Lender irrevocably authorizes the Administrative Agent to), at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.11. Prior to releasing or subordinating its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.11, the Administrative Agent and/or the Collateral Agent shall be entitled to receive a certificate of a Responsible Officer of the Borrower stating that such actions are permitted under this Agreement. Neither the Administrative Agent nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such certificate of a Responsible Officer of the Borrower.

 

The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 9.11 or in any of the Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders, except for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).

 

 

Section 9.12 Other Agents; Arrangers and Managers. None of the Lenders, the Agents or other Persons identified on the facing page or signature pages of this Agreement as a “co-arranger” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.

 

Section 9.13 Appointment of Supplemental Administrative Agents.

 

(a) It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any Law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative Agent deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent is hereby authorized to appoint an additional individual or institution selected by the Administrative Agent in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, administrative sub-agent or administrative co-agent (any such additional individual or institution being referred to herein individually as a “Supplemental Administrative Agent” and, collectively, as “Supplemental Administrative Agents”).

 

(b) In the event that the Administrative Agent appoints a Supplemental Administrative Agent with respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Administrative Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Administrative Agent to the extent, and only to the extent, necessary to enable such Supplemental Administrative Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise or performance thereof by such Supplemental Administrative Agent shall run to and be enforceable by either the Administrative Agent or such Supplemental Administrative Agent, and (ii) the provisions of this Article IX and of Section 10.04 and Section 10.05 that refer to the Administrative Agent shall inure to the benefit of such Supplemental Administrative Agent and all references therein to the Administrative Agent shall be deemed to be references to the Administrative Agent and/or such Supplemental Administrative Agent, as the context may require.

 

(c) Should any instrument in writing from any Loan Party be required by any Supplemental Administrative Agent so appointed by the Administrative Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, the Borrower shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent. In case any Supplemental Administrative Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Administrative Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Administrative Agent.

 

Section 9.14 Withholding Tax. To the extent required by any applicable Law, the Administrative Agent may deduct or withhold from any payment to any Lender under any Loan Document an amount equivalent to any applicable withholding Tax. If the Internal Revenue Service or any other Governmental Body asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, and shall make payable in respect thereof within ten (10) days after demand therefore including any penalties, additions to Tax or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred, whether or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Body. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 9.14. The agreements in this Section 9.14 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of this Agreement and the repayment, satisfaction or discharge of all other obligations. For the avoidance of doubt, this Section 9.14 shall not limit or expand the obligations of the Borrower or any Guarantor under Section 3.01 or any other provision of this Agreement.

 

 

Section 9.15 Erroneous Payments.

 

(a) If the Administrative Agent notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent, and such Lender or Secured Party shall (and shall cause any Payment Recipient who received such funds on its behalf to) promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error. If a Payment Recipient receives any payment, prepayment or repayment of principal, interest, fees, distribution or otherwise and does not receive a corresponding payment notice or payment advice, such payment, prepayment or repayment shall be presumed to be in error absent written confirmation from the Administrative Agent to the contrary.

 

(b) Each Lender or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.

 

(c) For so long as an Erroneous Payment (or portion thereof) has not been returned by any Payment Recipient who received such Erroneous Payment (or portion thereof) (such unrecovered amount, an “Erroneous Payment Return Deficiency”) to the Administrative Agent after demand therefor in accordance with immediately preceding clause (a), (i) the Administrative Agent may elect, in its sole discretion on written notice to such Lender or Secured Party, that all rights and claims of such Lender or Secured Party with respect to the Loans or other Obligations owed to such Person up to the amount of the corresponding Erroneous Payment Return Deficiency in respect of such Erroneous Payment (the “Corresponding Loan Amount”) shall immediately vest in the Administrative Agent upon such election; after such election, the Administrative Agent (x) may reflect its ownership interest in Loans in a principal amount equal to the Corresponding Loan Amount in the Register, and (y) upon five business days’ written notice to such Lender or Secured Party, may sell such Loan (or portion thereof) in respect of the Corresponding Loan Amount, and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by such Lender or Secured Party shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender or Secured Party, and (ii) each party hereto agrees that, except to the extent that the Administrative Agent has sold such Loan, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights of such Lender or Secured Party with respect to the Erroneous Payment Return Deficiency (such rights, the “Subrogation Rights”).

 

(d) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.

 

(e) No Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.

 

(f) Each party’s obligations, agreements and waivers under this Section 9.15 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.

 

 

ARTICLE X

Miscellaneous

 

Section 10.01 Amendments, Etc.

 

Except as otherwise set forth in this Agreement, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent (provided that to the extent that such waiver, amendment or modification does not affect the rights, duties, privileges or obligations of the Administrative Agent under this Agreement, the Administrative Agent shall acknowledge such waiver, amendment or other modification to the extent approved by the Required Lenders; provided further that, to the extent such waiver, amendment or modification was delivered to the Administrative Agent and does not affect the rights, duties, privileges or obligations of the Administrative Agent under this Agreement, the Administrative Agent’s failure to so acknowledge shall not impact the effectiveness of such waiver, amendment or modification) and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, waiver or consent shall:

 

(a) extend or increase the Term Commitment of any Lender without the written consent of each Lender directly and adversely affected thereby (it being understood that the waiver of any Default, mandatory prepayment or mandatory reduction of the Term Commitments shall not constitute an extension or increase of any Term Commitment of any Lender);

 

(b) postpone any date scheduled for, or reduce the amount of, any payment of principal or interest under Section 2.05 or Section 2.06, fees or other amounts without the written consent of each Lender directly and adversely affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest;

 

(c) reduce the principal of, or the rate of interest specified herein on, any Loan, or (subject to clause (iii) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby, it being understood that any change to the definition of Consolidated Senior Secured Net Leverage Ratio or in the component definitions thereof shall not constitute a reduction in the rate of interest or fees; provided that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate;

 

(d) (i) change any provision of this Section 10.01 or the definitions of “Required Lenders” and “Supermajority Lenders” without the written consent of each Lender directly and adversely affected thereby or (ii) change any provision of Section 2.10, Section 2.11 or Section 8.04 in a manner that would alter the pro rata sharing of payments thereunder without the written consent of each Lender;

 

(e) release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender; provided that any transaction permitted under Section 7.04 or Section 7.05 shall not be subject to this clause (e) to the extent such transaction does not result in the release of all or substantially all of the Collateral; or

 

(f) release all or substantially all of the value of the Guarantees in any transaction or series of related transactions, without the written consent of each Lender; provided that any transaction permitted under Section 7.04 or Section 7.05 shall not be subject to this clause (f) to the extent such transaction does not result in the release of all or substantially all of the value of the Guarantees; or

 

(g) (i) contractually subordinate the Obligations in right of payment to any other Indebtedness for borrowed money (other than in connection with Indebtedness permitted under Section 7.03(p)) or (ii) contractually subordinate all or substantially all of the liens in the Collateral to the liens securing any other Indebtedness for borrowed money (other than in connection with Liens permitted under Section 7.01(ff)), in each case, without the written consent of (i) the Supermajority Lenders and (ii) at least one other Lender that is not an Affiliate of Oaktree. (it being understood and agreed that, in connection with any amendment, waiver or modification of any Loan Document that would result in either (i) the contractual subordination of the Obligations in right of payment to any other Indebtedness for borrowed money (other than in connection with Indebtedness permitted under Section 7.03(p)) or (ii) the contractual subordination of all or substantially all of the liens in the Collateral to the liens securing any other Indebtedness for borrowed money (other than in connection with Liens permitted under Section 7.01(ff)), at least five (5) Business Days prior to the consummation thereof, the Borrower shall offer all Lenders the right to participate on a ratable basis in the applicable Indebtedness for borrowed money to which the Liens on the Collateral or Obligations under the Loan Documents are proposed to be subordinated (it being further understood and agreed that Lenders shall be permitted the right to participate on a ratable basis in such Indebtedness after the initial consummation, but within fifteen (15) Business Days of originally receiving notice of such transaction);

 

 

and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent under this Agreement or any other Loan Document; (ii) Section 10.07(h) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification; and (iii) any amendment or waiver that by its terms affects the rights or duties of Lenders holding Loans or Term Commitments of a particular Class (but not the Lenders holding Loans or Term Commitments of any other Class) will require only the requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto if such Class of Lenders were the only Class of Lenders. Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans, the Incremental Term Loans, if any, and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.

 

Notwithstanding anything to the contrary contained in this Section 10.01, any guarantees, collateral security documents and related documents executed by Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended, supplemented and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any Lender if such amendment, supplement or waiver is delivered in order (i) to comply with local Law or advice of local counsel, (ii) to cure ambiguities, omissions, mistakes or defects or (iii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents. Furthermore, with the consent of the Administrative Agent at the request of the Borrower (without the need to obtain any consent of any Lender), any Loan Document may be amended to cure ambiguities, omissions, mistakes or defects.

 

Neither the Administrative Agent nor the Collateral Agent shall amend or waive any provision of an Acceptable Intercreditor Agreement (other than to cure ambiguities, omissions, mistakes or defects or to add other parties thereto (to the extent contemplated by Section 7.01) without the written consent of the Required Lenders.

 

Section 10.02 Notices and Other Communications; Facsimile Copies.

 

(a) General. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Loan Document shall be in writing (including by facsimile transmission). All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

 

(i) if to the Borrower or the Administrative Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and

 

(ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a written notice to the Borrower and the Administrative Agent.

 

All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(b)), when delivered; provided that notices and other communications to the Administrative Agent pursuant to Article II shall not be effective until actually received by such Person during the person’s normal business hours. In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder.

 

 

(b) Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

 

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

 

(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Agent-Related Persons (collectively, the “Agent Parties”) have any liability to the Loan Parties, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Loan Party, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

 

(d) Change of Address, Etc. Each of the Borrower and the Administrative Agent may change its address, telecopier or telephone number for notices and other communications hereunder by written notice to the other parties hereto. Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by written notice to the Borrower and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agents from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or their securities for purposes of United States Federal or state securities laws.

 

(e) Reliance by Agents and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross negligence or willful misconduct. All telephonic notices to the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

 

(f) Notice to other Loan Parties. The Borrower agrees that notices to be given to any other Loan Party under this Agreement or any other Loan Document may be given to the Borrower in accordance with the provisions of this Section 10.02 with the same effect as if given to such other Loan Party in accordance with the terms hereunder or thereunder.

 

Section 10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.

 

 

Section 10.04 Attorney Costs and Expenses. The Borrower agrees (a) to pay or reimburse the Administrative Agent for all reasonable and documented or invoiced out-of-pocket costs and expenses associated with the syndication of the Term Loans and the preparation, negotiation, execution and delivery, administration, amendment, modification, waiver and/or enforcement of this Agreement and the other Loan Documents, and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), including all Attorney Costs of Akin Gump Strauss Hauer & Feld LLP (and any other counsel retained with the Borrower’s consent (such consent not to be unreasonably withheld, conditioned or delayed)) and one local counsel in each relevant jurisdiction, and (b) to pay or reimburse the Administrative Agent for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or remedies under this Agreement or the other Loan Documents (including all costs and expenses incurred in connection with any workout or restructuring in respect of the Loans, all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and including all Attorney Costs of counsel to the Administrative Agent). The foregoing costs and expenses shall include all reasonable search, filing, recording and title insurance charges and fees related thereto, and other reasonable and documented out-of-pocket expenses incurred by any Agent. The agreements in this Section 10.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations. All amounts due under this Section 10.04 shall be paid within ten (10) Business Days of receipt by the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail. If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent in its sole discretion.

 

Section 10.05 Indemnification by the Borrower. Whether or not the transactions contemplated hereby are consummated, the Borrower shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates and their and their Affiliates’ respective directors, officers, employees, agents, advisors, and other representatives and successors (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by the Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Transaction, including the financing contemplated hereby, of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered by a Loan Party in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Term Commitment or Loan or the use or proposed use of the proceeds therefrom, or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by the Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Borrower, any Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of its controlled Affiliates or controlling Persons or any of the officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transactions (as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Borrower or any of its Affiliates (other than with respect to a claim against an Indemnitee acting in its capacity as an Agent or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision)). No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided that the foregoing shall not limit any Loan Party’s indemnification obligations hereunder with regard to claims for such damages by third parties against an Indemnitee. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, managers, partners, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after written demand therefor; provided, however, that if the Borrower has reimbursed any Indemnitee for any legal or other expenses in connection with any Indemnified Liabilities and there is a final non-appealable judgment of a court of competent jurisdiction that the Indemnitee was not entitled to indemnification or contribution with respect to such Indemnified Liabilities pursuant to the express terms of this Section 10.05, the Indemnitee shall promptly refund such expenses paid by the Borrower to the Indemnitee. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this Section 10.05 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.

 

 

Section 10.06 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate.

 

Section 10.07 Successors and Assigns.

 

(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except as otherwise provided herein (including without limitation as permitted under Section 7.04), neither the Borrower nor any of its Subsidiaries may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee, (ii) by way of participation in accordance with the provisions of Section 10.07(e), (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(g) or (iv) to an SPC in accordance with the provisions of Section 10.07(h) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 10.07(e) and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (“Assignees”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Term Loan to another Lender, an Affiliate of a Lender or an Approved Fund.

 

(ii) Assignments shall be subject to the following additional conditions:

 

(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Term Commitment or Loans of any Class, the amount of the Term Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 unless the Borrower and the Administrative Agent otherwise consents, provided that such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;

 

(B) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption;

 

(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and any documentation required by Section 3.01(f);

 

(D) the Assignee shall not be a natural person or a Specified Competitor;

 

(E) the Assignee shall not be a Defaulting Lender;

 

(F) in case of an assignment to an Affiliated Lender, (1) after giving effect to such assignment, to all other assignments with all Affiliated Lenders, the aggregate principal amount of all Loans and Term Commitments then held by all Affiliated Lenders (other than Affiliated Debt Funds) shall not exceed 25% of the aggregate unpaid principal amount of the Term Loans then outstanding (determined at the time of such purchase), (2) any Loans assigned to the Borrower or its Restricted Subsidiaries shall be cancelled promptly upon such assignment (provided that Loans assigned to an Unrestricted Subsidiary need not be cancelled as set forth in this clause (2) but such Unrestricted Subsidiary will otherwise be subject to the limitations on voting and other limitations in this clause (F) and Section 10.07(j) below as if such Unrestricted Subsidiary was an Affiliated Lender), (3) in the event that any proceeding under the Bankruptcy Code shall be instituted by or against the Borrower or any other Guarantor, each Affiliated Lender shall acknowledge and agree that they are each “insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Term Commitments owned by it shall not be included in determining whether the applicable class of creditors holding such claims has voted to accept a proposed plan for purposes of Section 1129(a)(10) of the Bankruptcy Code, or, alternatively, to the extent that the foregoing designation is deemed unenforceable for any reason, each Affiliated Lender shall vote in such proceedings in the same proportion as the allocation of voting with respect to such matter by those Lenders who are not Affiliated Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such Affiliated Lender in a manner that is less favorable in any material respect to such Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Affiliated Lenders; provided that this clause (3) shall not apply to Affiliated Debt Funds, (4) such Affiliated Lender (other than Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate in (or receive any notice of) Lender meetings or conference calls and will not be entitled to challenge the Administrative Agent’s and the Lenders’ attorney-client privilege as a result of their status as Affiliated Lenders and (5) notwithstanding anything to the contrary contained herein, any such Loans acquired by an Affiliated Lender may, with the consent of the Borrower, be contributed to the Borrower (whether through any of its direct or indirect parent entities or otherwise) and exchanged for debt or equity securities that are otherwise permitted to be issued at such time;

 

 

(G) notwithstanding anything in Section 10.01 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have (x) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (y) otherwise acted on any matter related to any Loan Document or (z) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, all Term Loans held by Affiliated Debt Funds may not account for more than 49.9% (pro rata among such Affiliated Debt Funds) of the Loans of consenting Lenders included in determining whether the Required Lenders have consented to any action pursuant to Section 10.01;

 

(H) The Borrower and its Subsidiaries may not purchase any Loans so long as any Event of Default has occurred and is continuing;

 

(I) any purchases by Affiliated Lenders shall require that such Affiliated Lender clearly identify itself as an Affiliated Lender in any Assignment and Assumption executed in connection with such purchases or sales and each such Assignment and Assumption shall contain customary “big boy” representations but no requirement to make representations as to the absence of any material nonpublic information; and

 

(J) Oaktree and its Affiliates shall only be permitted to assign up to an aggregate principal amount of $200,000,000 of the Loans and/or Term Commitments prior to the twelve (12) month anniversary of the Closing Date without the prior written consent of the Borrower.

 

This paragraph (b) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis.

 

(c) Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(d) and receipt by the Administrative Agent from the parties to each assignment of a processing and recordation fee of $3,500 (provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment), from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.03, 3.04, 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, and the surrender by the assigning Lender of its Term Note (if any), the Borrower (at its expense) shall execute and deliver a Term Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (c) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.07(e). For greater certainty, any assignment by a Lender pursuant to this Section 10.07 shall not in any way constitute or be deemed to constitute a novation, discharge, recession, extinguishment or substitution of the existing Indebtedness and any Indebtedness so assigned shall continue to be the same obligation and not a new obligations.

 

(d) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Term Commitments of, and principal amounts (and related interest amounts) and currencies of the Loans, owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent demonstrable error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, any Agent and any Lender (with respect to its own interests only), at any reasonable time and from time to time upon reasonable prior notice.

  

 

(e) Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or, to the extent a schedule of the Specified Competitors has been provided to the Administrative Agent, a Specified Competitor) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Term Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in Section 10.01(a), (b), (c), (d), (e) or (f) that directly affects such Participant. Subject to Section 10.07(f), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.03 and 3.04 (through the applicable Lender), subject to the requirements and limitations of such Sections (including Section 3.01(e) and (f) and Sections 3.05 and 3.06), to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(b). To the extent permitted by applicable Law, each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender; provided that such Participant complies with Section 2.11 as though it were a Lender. Any Lender that sells participations shall maintain a register on which it enters the name and the address of each Participant and the principal and interest amounts of each Participant’s participation interest in the Term Commitments and/or Loans (or other rights or obligations) held by it (the “Participant Register”). The entries in the Participant Register shall be conclusive, absent manifest error, and the Borrower and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation interest as the owner thereof for all purposes notwithstanding any notice to the contrary. In maintaining the Participant Register, such Lender shall be acting as the non-fiduciary agent of the Borrower solely for purposes of applicable United States federal income tax law and undertakes no duty, responsibility or obligation to the Borrower (without limitation, in no event shall such Lender be a fiduciary of the Borrower for any purpose) No Lender shall have any obligation to disclose all or any portion of a Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, or its other obligations under this Agreement) except (x) to the extent such Participant makes a claim under Sections 3.01, 3.03 or 3.04, (y) to the extent that such disclosure is necessary to establish in connection with a Tax audit that such commitment, loan, or other obligation is in registered form under Section 5f.103(c) of the United States Treasury Regulations or, if different, under Sections 871(h) or 881(c) of the Code or (z) to the extent otherwise required by law.

 

(f) A Participant shall not be entitled to receive any greater payment under Section 3.01, 3.03 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent or except to the extent such entitlement to a greater payment results from a Change in Law after the Participant became a Participant.

 

(g) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Term Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. Each party hereto hereby agrees that (i) an SPC (in lieu of the Granting Lender) shall be entitled to the benefit of Sections 3.01, 3.03 and 3.04, subject to the requirements and limitations of such Sections (including Section 3.01(e) and (f) and Sections 3.05 and 3.06), to the same extent as if such SPC were a Lender, but neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Section 3.01, 3.03 or 3.04) except to the extent any entitlement to greater amounts results from a Change in Law after the grant to the SPC occurred, (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable and such liability shall remain with the Granting Lender, and (iii) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Term Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose, subject to Section 10.08, on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee Obligation or credit or liquidity enhancement to such SPC. 

 

 

(i) Notwithstanding anything to the contrary contained herein, (1) any Lender may in accordance with applicable Law create a security interest in all or any portion of the Loans owing to it and the Term Note, if any, held by it and (2) any Lender that is a Fund may create a security interest in all or any portion of the Loans owing to it and the Term Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.

 

(j) Notwithstanding anything in Section 10.01 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders or the Supermajority Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom (unless the action in question affects any Affiliated Lenders (other than Affiliated Debt Funds) in a disproportionately adverse manner than its effect on the other Lenders), (ii) otherwise acted on any matter related to any Loan Document, or (iii) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, no Affiliated Lender (other than Affiliated Debt Fund) shall have any right to consent (or not consent), otherwise act or direct or require the Administrative Agent or any Lender to take (or refrain from taking) any such action and:

 

(A) all Term Loans held by any Affiliated Lenders (other than Affiliated Debt Fund) shall be deemed to be not outstanding for all purposes of calculating whether the Required Lenders have taken any actions; and

 

(B) all Term Loans held by Affiliated Lenders (other than Affiliated Debt Fund) shall be deemed to be not outstanding for all purposes of calculating whether all Lenders have taken any action unless the action in question affects such Affiliated Lender in a disproportionately adverse manner than its effect on other Lenders.

 

Section 10.08 Confidentiality. Each of the Agents and the Lenders (each, a “Recipient”) agrees to maintain the confidentiality of the Information and to not use or disclose such information, except that Information may be disclosed (a) to its Affiliates, partners and members and its and their respective directors, managers, officers, employees, accountants, advisors, attorneys, consultants, current or prospective funding sources (including leverage providers), agents or other representatives with a need to know such Information (collectively, “Permitted Recipients”); (b) to the extent requested by any Governmental Body and to any pledgee referred to in Section 10.07(g); (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) subject to an agreement containing provisions substantially the same as those of this Section 10.08 (or as may otherwise be reasonably acceptable to the Borrower), to any pledgee referred to in Section 10.07(i), counterparty to a Swap Contract, Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement; (f) with the written consent of the Borrower; (g) to the extent such Information (x) was, is, or becomes publicly available other than as a result of a breach of this Section 10.08 by such Recipient, (y) is in the possession of the Recipient or any of its Permitted Recipients at the time of disclosure or becomes available to a Recipient or any of its Permitted Recipients on a non-confidential basis from a source other than the Loan Parties or (z) is independently developed by the Recipient or any of its Permitted Recipients without the use of or reliance on such information; (h) to any Governmental Body or examiner regulating any Lender; (i) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to the Loan Parties received by it from such Lender); (j) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (k) to the extent that such Information is received by such Lender or any of its Affiliates from a third party that is not, to such Lender’s knowledge, subject to any contractual or fiduciary confidentiality obligations owing to the Borrower or any of its Affiliates; (l) to the extent that such Information is independently developed by such Lender or any of its Affiliates or (m) to enable it to enforce or otherwise exercise any of its rights and remedies under any Loan Document. In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Term Commitments, and the Credit Extensions. For the purposes of this Section 10.08, “Information” means all information received from any Loan Party or its Affiliates or its Affiliates’ directors, managers, officers, employees, trustees, investment advisors or agents, relating to the Borrower or any of its Subsidiaries or their business, other than any such information that is publicly available to any Agent or any Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.08, including, without limitation, information delivered pursuant to Section 6.01, 6.02 or 6.03 hereof.

 

 

Section 10.09 Setoff. In addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and its affiliates authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other Indebtedness (in any currency) at any time owing by, such Lender and its Affiliates, as the case may be, to or for the credit or the account of the respective Loan Parties and their Subsidiaries against any and all Obligations owing to such Lender and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary or a Domestic Foreign Holding Company. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent and such Lender may have.

 

Section 10.10 Counterparts. This Agreement and each other Loan Document may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or other electronic transmission of an executed counterpart of a signature page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document. The Agents may also require that any such documents and signatures delivered by telecopier or other electronic transmission be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier or other electronic transmission.

 

Section 10.11 Integration. This Agreement, together with the other Loan Documents and the Fee Letter, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.

 

Section 10.12 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied. The provisions of Sections 10.14 and 10.15 shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.

 

Section 10.13 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

Section 10.14 GOVERNING LAW, JURISDICTION, SERVICE OF PROCESS.

 

(a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SUCH OTHER LOAN DOCUMENT); PROVIDED, HOWEVER, THAT (A) THE INTERPRETATION OF THE DEFINITION OF COMPANY MATERIAL ADVERSE EFFECT (AND WHETHER OR NOT A COMPANY MATERIAL ADVERSE EFFECT HAS OCCURRED UNDER THE ACQUISITION AGREEMENT), (B) THE DETERMINATION OF THE ACCURACY OF ANY SPECIFIED ACQUISITION AGREEMENT REPRESENTATIONS AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF THE BORROWER AND ANY OF ITS AFFILIATES HAVE THE RIGHT TO TERMINATE ITS AND THEIR OBLIGATIONS UNDER THE ACQUISITION AGREEMENT OR THE FAILURE OF SUCH SPECIFIED ACQUISITION AGREEMENT REPRESENTATIONS TO BE ACCURATE RESULTS IN A FAILURE OF A CONDITION PRECEDENT TO THE BORROWER’S OBLIGATION TO CONSUMMATE THE ACQUISITION PURSUANT TO THE ACQUISITION AGREEMENT AND (C) THE DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT SHALL, IN EACH CASE, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW THEREOF.

 

 

(b) EXCEPT AS SET FORTH IN THE FOLLOWING PARAGRAPH, ANY LEGAL ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK (PROVIDED THAT IF NONE OF SUCH COURTS CAN AND WILL EXERCISE SUCH JURISDICTION, SUCH EXCLUSIVITY SHALL NOT APPLY), AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.

 

NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION (I) FOR PURPOSES OF ENFORCING A JUDGMENT, (II) IN CONNECTION WITH EXERCISING REMEDIES AGAINST THE COLLATERAL IN A JURISDICTION IN WHICH SUCH COLLATERAL IS LOCATED, (III) IN CONNECTION WITH ANY PENDING BANKRUPTCY, INSOLVENCY OR SIMILAR PROCEEDING IN SUCH JURISDICTION OR (IV) TO THE EXTENT THE COURTS REFERRED TO IN THE PREVIOUS PARAGRAPH DO NOT HAVE JURISDICTION OVER SUCH LEGAL ACTION OR PROCEEDING OR THE PARTIES OR PROPERTY SUBJECT THERETO.

 

Section 10.15 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.15 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

 

Section 10.16 Binding Effect. This Agreement shall become effective when it shall have been executed by the Borrower and the Administrative Agent shall have been notified by each Lender that each such Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, each Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders except as permitted by Section 7.04.

 

Section 10.17 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Borrower in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from the Borrower in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to the Borrower (or to any other Person who may be entitled thereto under applicable Law).

 

 

Section 10.18 Lender Action. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party or any other obligor under any of the Loan Documents (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Loan Party, without the prior written consent of the Administrative Agent. The provisions of this Section 10.18 are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party.

 

Section 10.19 USA PATRIOT Act. Each Lender hereby notifies the Borrower that, pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower and the Guarantors, which information includes the name and address of the Borrower and the Guarantors and other information that will allow such Lender to identify the Borrower and the Guarantors in accordance with the USA PATRIOT Act.

 

Section 10.20 Intercreditor Agreements. Each Lender (and, by its acceptance of the benefits of any Collateral Document, each other Secured Party) hereunder authorizes and instructs the Collateral Agent, as Collateral Agent and on behalf of such Lender or other Secured Party, to enter into one or more intercreditor agreements (including an Acceptable Intercreditor Agreement) from time to time and agrees that it will be bound by and will take no action contrary to the provisions thereof.

 

Section 10.21 Obligations Absolute. To the fullest extent permitted by applicable Law, all obligations of the Loan Parties hereunder shall be absolute and unconditional irrespective of:

 

(a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any Loan Party;

 

(b) any lack of validity or enforceability of any Loan Document or any other agreement or instrument relating thereto against any Loan Party;

 

(c) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from any Loan Document or any other agreement or instrument relating thereto;

 

(d) any exchange, release or non-perfection of any other Collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for all or any of the Obligations;

 

(e) any exercise or non-exercise, or any waiver of any right, remedy, power or privilege under or in respect hereof or any Loan Document; or

 

(f) any other circumstances which might otherwise constitute a defense available to, or a discharge of, the Loan Parties.

 

Section 10.22 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) neither the Administrative Agent nor any Lender has any obligation to the Borrower or any its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and each Lender and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and the Administrative Agent does not have any obligation to disclose any of such interests to the Borrower or any of its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent and each Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

 

 

Section 10.23 Acknowledgment and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

 

(b) the effects of any Bail-In Action on any such liability, including, if applicable:

 

(i) a reduction in full or in part or cancellation of any such liability;

 

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

 

(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

 

Section 10.24 Electronic Execution of Assignments and Certain Other Documents. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other Committed Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

	RUMBLEON, INC.
	as the Borrower
	By:	/s/ Marshall Chesrown
	Name:	Marshall Chesrown
	Title:	President and Chief Executive Officer

 

[Signature Page to Credit Agreement]

 

 

	OAKTREE FUND ADMINISTRATION, LLC, as Administrative Agent and Collateral Agent
	By:	Oaktree Capital Management, L.P.
	Its:	Managing Member
	By:	/s/ Christine Pope
	Name:	Christine Pope
	Title:	Managing Director
	By:	/s/ Mary Gallegly
	Name:	Mary Gallegly
	Title:	Senior Vice President

 

[Signature Page to Credit Agreement]

 

  

	OAKTREE SPECIALTY LENDING CORPORATION, as a Lender
	By:	Oaktree Fund Advisors, LLC
	Its:	Investment Adviser
	By:	/s/ Christine Pope
	Name:	Christine Pope
	Title:	Managing Director
	By:	/s/ Mary Gallegly
	Name:	Mary Gallegly
	Title:	Senior Vice President
	OAKTREE STRATEGIC INCOME II, INC., as a Lender
	By:	Oaktree Fund Advisors, LLC
	Its:	Investment Advisor
	By:	/s/ Christine Pope
	Name:	Christine Pope
	Title:	Managing Director
	By:	/s/ Mary Gallegly
	Name:	Mary Gallegly
	Title:	Senior Vice President

 

[Signature Page to Credit Agreement]

 

 

	OSI 2 SENIOR LENDING SPV, LLC, as a Lender
	By:	Oaktree Strategic Income II, Inc.
	Its:	Managing Member
	By:	Oaktree Fund Advisors, LLC
	Its:	Investment Manager
	By:	/s/ Christine Pope
	Name:	Christine Pope
	Title:	Managing Director
	By:	/s/ Mary Gallegly
	Name:	Mary Gallegly
	Title:	Senior Vice President
	OAKTREE GILEAD INVESTMENT FUND AIF (DELAWARE), L.P., as a Lender
	By:	Oaktree Fund AIF Series, L.P. – Series T
	Its:	General Partner
	By:	Oaktree Fund GP AIF, LLC
	Its:	Managing Member
	By:	Oaktree Fund GP III, L.P.
	Its:	Managing Member
	By:	/s/ Christine Pope
	Name:	Christine Pope
	Title:	Authorized Signatory
	By:	/s/ Mary Gallegly
	Name:	Mary Gallegly
	Title:	Authorized Signatory

 

[Signature Page to Credit Agreement]

 

 

	OAKTREE HUNTINGTON-GCF INVESTMENT FUND (DIRECT LENDING AIF), L.P., as a Lender
	By:	Oaktree Huntington-GCF Investment Fund
		(Direct Lending AIF) GP, L.P.
	Its:	General Partner
	By:	Oaktree Huntington-GCF Investment Fund (Direct Lending AIF) GP, LLC
	Its:	General Partner
	By:	Oaktree Fund GP III, L.P.
	Its:	Managing Member
	By:	/s/ Christine Pope
	Name:	Christine Pope
	Title:	Authorized Signatory
	By:	/s/ Mary Gallegly
	Name:	Mary Gallegly
	Title:	Authorized Signatory
	OAKTREE-NGP STRATEGIC CREDIT, LLC, as a Lender
	By:	Oaktree Capital Management, L.P.,
	Its:	Manager
	By:	/s/ Christine Pope
	Name:	Christine Pope
	Title:	Managing Director
	By:	/s/ Mary Gallegly
	Name:	Mary Gallegly
	Title:	Senior Vice President

 

[Signature Page to Credit Agreement]

 

  

OAKTREE-FORREST MULTI-STRATEGY, LLC– SERIES A, as a Lender			OAKTREE-TBMR STRATEGIC CREDIT FUND F, LLC, as a Lender
By:	Oaktree Capital Management, L.P.		By:	Oaktree Capital Management, L.P.
Its:	Manager		Its:	Manager
By:	/s/ Christine Pope		By:	/s/ Christine Pope
Name:	Christine Pope		Name:	Christine Pope
Title:	Managing Director		Title:	Managing Director
By:	/s/ Mary Gallegly		By:	/s/ Mary Gallegly
Name:	Mary Gallegly		Name:	Mary Gallegly
Title:	Senior Vice President		Title:	Senior Vice President
OAKTREE-TBMR STRATEGIC CREDIT FUND G, LLC, as a Lender			OAKTREE-TBMR STRATEGIC CREDIT FUND C, LLC, as a Lender
By:	Oaktree Capital Management, L.P.		By:	Oaktree Capital Management, L.P.
Its:	Manager		Its:	Manager
By:	/s/ Christine Pope		By:	/s/ Christine Pope
Name:	Christine Pope		Name:	Christine Pope
Title:	Managing Director		Title:	Managing Director
By:	/s/ Mary Gallegly		By:	/s/ Mary Gallegly
Name:	Mary Gallegly		Name:	Mary Gallegly
Title:	Senior Vice President		Title:	Senior Vice President

 

[Signature Page to Credit Agreement]

 

 

	OAKTREE-MINN STRATEGIC CREDIT, LLC, as a Lender
	By:	Oaktree Capital Management, L.P.
	Its:	Manager
	By:	/s/ Christine Pope
	Name:	Christine Pope
	Title:	Managing Director
	By:	/s/ Mary Gallegly
	Name:	Mary Gallegly
	Title:	Senior Vice President

 

INPRS STRATEGIC CREDIT HOLDINGS, LLC, as a Lender			OAKTREE-TSE 16 STRATEGIC CREDIT, LLC, as a Lender
By:	Oaktree Capital Management, L.P.		By:	Oaktree Capital Management, L.P.
Its:	Manager		Its:	Manager
By:	/s/ Christine Pope		By:	/s/ Christine Pope
Name:	Christine Pope		Name:	Christine Pope
Title:	Managing Director		Title:	Managing Director
By:	/s/ Mary Gallegly		By:	/s/ Mary Gallegly
Name:	Mary Gallegly		Name:	Mary Gallegly
Title:	Senior Vice President		Title:	Senior Vice President

 

[Signature Page to Credit Agreement]

 

  

	OAKTREE-TCDRS STRATEGIC CREDIT, LLC, as a Lender
	By:	Oaktree Capital Management, L.P.
	Its:	Manager
	By:	/s/ Christine Pope
	Name:	Christine Pope
	Title:	Managing Director
	By:	/s/ Mary Gallegly
	Name:	Mary Gallegly
	Title:	Senior Vice President
	OAKTREE GLOBAL CREDIT PLUS FUND, L.P.
	By:	Oaktree Fund GP, LLC
	Its:	General Partner
	By:	Oaktree Fund GP I, L.P.
	Its:	Managing Member
	By:	/s/ Christine Pope
	Name:	Christine Pope
	Title:	Authorized Signatory
	By:	/s/ Mary Gallegly
	Name:	Mary Gallegly
	Title:	Authorized Signatory

 

[Signature Page to Credit Agreement]

 

 

	OPPS XB RMBL HOLDINGS, LLC, as a Lender
	By:	Oaktree Fund AIF Series (Cayman), L.P. – Series G
	Its:	Manager
	By:	Oaktree AIF (Cayman) GP Ltd.
	Its:	General Partner
	By:	Oaktree Capital Management, L.P.
	Its:	Director
	By:	/s/ Jordan Mikes
	Name:	Jordan Mikes
	Title:	Managing Director
	By:	/s/ David Nicoll
	Name:	David Nicoll
	Title:	Senior Vice President
	By:	Oaktree Fund AIF Series, L.P. – Series N
	Its:	Manager
	By:	Oaktree Fund GP AIF, LLC
	Its:	General Partner
	By:	Oaktree Fund GP III, L.P.
	Its:	Managing Member
	By:	/s/ Jordan Mikes
	Name:	Jordan Mikes
	Title:	Authorized Signatory
	By:	/s/ David Nicoll
	Name:	David Nicoll
	Title:	Authorized Signatory

 

[Signature Page to Credit Agreement]

 

  

	OPPS XI RMBL HOLDINGS, LLC, as a Lender
	By:	Oaktree Fund AIF Series (Cayman), L.P. – Series O
	Its:	Manager
	By:	Oaktree AIF (Cayman) GP Ltd.
	Its:	General Partner
	By:	Oaktree Capital Management, L.P.
	Its:	Director
	By:	/s/ Jordan Mikes
	Name:	Jordan Mikes
	Title:	Managing Director
	By:	/s/ David Nicoll
	Name:	David Nicoll
	Title:	Senior Vice President
	By:	Oaktree Fund AIF Series, L.P. – Series N
	Its:	Manager
	By:	Oaktree Fund GP AIF, LLC
	Its:	General Partner
	By:	Oaktree Fund GP III, L.P.
	Its:	Managing Member
	By:	/s/ Jordan Mikes
	Name:	Jordan Mikes
	Title:	Authorized Signatory
	By:	/s/ David Nicoll
	Name:	David Nicoll
	Title:	Authorized Signatory

 

[Signature Page to Credit Agreement]

 

 

	OAKTREE MEZZANINE FUND V HOLDINGS (DELAWARE), L.P.., as a Lender
	By:	Oaktree Mezzanine Fund V GP, L.P.
	Its:	General Partner
	By:	Oaktree Fund GP IIA, LLC
	Its:	General Partner
	By:	Oaktree Fund GP II, L.P.
	Its:	Managing Member
	By:	/s/ Bill Casperson
	Name:	Bill Casperson
	Title:	Authorized Signatory
	By:	/s/ Robert Sullivan
	Name:	Robert Sullivan
	Title:	Authorized Signatory

 

[Signature Page to Credit Agreement]

 

 

	OAKTREE MIDDLE-MARKET DIRECT LENDING UNLEVERED FUND (PARALLEL), L.P.., as a Lender
	By:	Oaktree Middle-Market Direct Lending
		GP (Parallel), Ltd.
	Its:	General Partner
	By:	/s/ Bill Casperson
	Name:	Bill Casperson
	Title:	Authorized Signatory
	By:	/s/ Robert Sullivan
	Name:	Robert Sullivan
	Title:	Authorized Signatory

 

[Signature Page to Credit Agreement]

 

 

	OAKTREE MIDDLE-MARKET DIRECT LENDING UNLEVERED FUND, L.P.., as a Lender
	By:	Oaktree Middle-Market Direct Lending GP, L.P.
	Its:	General Partner
	By:	Oaktree Fund GP IIA, LLC
	Its:	General Partner
	By:	Oaktree Fund GP II, L.P.
	Its:	Managing Member
	By:	/s/ Bill Casperson
	Name:	Bill Casperson
	Title:	Authorized Signatory
	By:	/s/ Robert Sullivan
	Name:	Robert Sullivan
	Title:	Authorized Signatory

 

[Signature Page to Credit Agreement]

 

 

	OAKTREE MMDL AGGREGATOR, LLC, as a Lender
	By:	Oaktree Middle-Market Direct Lending GP, L.P.
	Its:	Manager
	By:	Oaktree Fund GP IIA, LLC
	Its:	General Partner
	By:	Oaktree Fund GP II, L.P.
	Its:	Managing Member
	By:	/s/ Bill Casperson
	Name:	Bill Casperson
	Title:	Authorized Signatory
	By:	/s/ Robert Sullivan
	Name:	Robert Sullivan
	Title:	Authorized Signatory

 

[Signature Page to Credit Agreement]

 

  

	OAKTREE MMDL AGGREGATOR, L.P., as a Lender
	By:	Oaktree Middle-Market Direct Lending
		GP (Aggregator), Ltd.
	Its:	General Partner
	By:	Oaktree Capital Management, L.P.
	Its:	Director
	By:	/s/ Bill Casperson
	Name:	Bill Casperson
	Title:	Managing Director
	By:	/s/ Robert Sullivan
	Name:	Robert Sullivan
	Title:	Senior Vice President

 

[Signature Page to Credit Agreement]

 

 

	OAKTREE MMDL UNPLEDGED ASSETS, LLC., as a Lender
	By:	Oaktree Fund GP IIA, LLC
	Its:	Manager
	By:	Oaktree Fund GP II, L.P.
	Its:	Managing Member
	By:	/s/ Bill Casperson
	Name:	Bill Casperson
	Title:	Authorized Signatory
	By:	/s/ Robert Sullivan
	Name:	Robert Sullivan
	Title:	Authorized Signatory

 

[Signature Page to Credit Agreement]

 

  

	DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender
	By:	/s/ Alexander Gorokhovskiy
	Name:	Alexander Gorokhovskiy
	Title:	Managing Director
	By:	/s/ Anthony Campo
	Name:	Anthony Campo
	Title:	Managing Director

 

[Signature Page to Credit Agreement]

 

 

	CPPIB CREDIT INVESTMENTS III
	INC., as a Lender
	By:	/s/ David Colla
	Name:	David Colla
	Title:	Authorized Signatory
	By:	/s/ Bradley Mashinter
	Name:	Bradley Mashinter
	Title:	Authorized Signatory
	By:	/s/ Don Kim
	Name:	Don Kim
	Title:	Authorized Signatory

 

[Signature Page to Credit Agreement]

 

 

	BROOKFIELD US II INC., as a Lender
	By:	/s/ Kathy Sarpash
	Name:	Kathy Sarpash
	Title:	Secretary

 

[Signature Page to Credit Agreement]

 

  

	BROOKFIELD ANNUITY COMPANY, as a Lender
	By:	/s/ Paul Forestell
	Name:	Paul Forestell
	Title:	Chief Executive Officer
	By:	/s/ Carmen Woo
	Name:	Carmen Woo
	Title:	Chief Financial Officer

 

[Signature Page to Credit Agreement]

 

  

	34th STREET FUNDING, LLC, as a Lender
	By:	/s/ Gregg Bresner
	Name:	Gregg Bresner
	Title:	Chief Investment Officer

 

[Signature Page to Credit Agreement]

 

  

	OFSCC-FS LLC, as a Lender
	By:	/s/ Tod K. Reichert
	Name:	Tod K. Reichert
	Title:	Managing Director

 

[Signature Page to Credit Agreement]

 

  

	HANCOCK PARK CORPORATE INCOME, INC.
	By:	OFS Capital Management, LLC
	Its:	Investment Advisor
	By:	/s/ Tod K. Reichert
	Name:	Tod K. Reichert
	Title:	Managing Director

 

[Signature Page to Credit Agreement]

 

  

	CIM REAL ASSETS & CREDIT FUND, as a Lender
	By:	/s/ David Thompson
	Name:	David Thompson
	Title:	Chief Executive Officer

 

[Signature Page to Credit Agreement]

 

 

 

 

Exhibit 10.2

 

EXECUTION

 

FIRST SUPPLEMENTAL INDENTURE

 

FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture), dated as of August 31, 2021, between RUMBLEON, INC., a Nevada corporation (the "Company") and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (the "Trustee") under the Indenture (as defined below), and consented to and agreed to by Silverback Opportunistic Credit Master Fund Limited, Silverback Opportunity Master Fund Limited, KASAD 2, LP, Blackwell Partners LLC Series B, and Nineteen77 Global Multi-Strategy Alpha Master Limited (the “Beneficial Owners”) and by WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as Convertible Notes Collateral Agent (as defined below).

 

WITNESSETH:

 

WHEREAS, the Company and the Trustee are parties to that certain Indenture dated as of January 14, 2020 by and between the Trustee and the Company (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, including by this First Supplemental Indenture, the "Indenture");

 

WHEREAS, pursuant to Section 10.01(d) of the Indenture, the Company and the Trustee may enter into a supplemental indenture to secure the Notes;

 

WHEREAS, the sole Beneficial Owners of the Notes are Silverback Opportunistic Credit Master Fund Limited, Silverback Opportunity Master Fund Limited, KASAD 2, LP, Blackwell Partners LLC Series B, and Nineteen77 Global Multi-Strategy Alpha Master Limited;

 

WHEREAS, the Company, on or about the date hereof, is entering into a term loan transaction in excess of Five Million Dollars ($5,000,000.00) with Oaktree Fund Administration, LLC, as administrative agent for certain lenders, which term loan transaction will be secured by the Term Loan Liens (as defined below);

 

WHEREAS, pursuant to Section 4.10 of the Indenture, the payments due under the Indenture and the Notes are to be secured on an equal and ratable (or senior) basis with the obligations so secured by the Term Loan Liens;

 

WHEREAS, (a) the Company will enter into (i) that certain Intercreditor Agreement (as defined below) among the Company, the Credit Agreement Collateral Agent (as defined below) and the Convertible Notes Collateral Agent; and (ii) that certain Security Agreement (as defined below) and (b) certain direct and indirect subsidiaries of the Company will enter into the Guaranty (as defined below); and

 

 

WHEREAS, pursuant to Section 10.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture;

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Trustee, mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

 

1. Effectiveness of Supplemental Indenture. This Supplemental Indenture shall become effective as of the date hereof (the "Amendment Effective Time").

 

2. Capitalized Terms. Capitalized terms used but not defined in this Supplemental Indenture shall have the meanings assigned to them in the Indenture. The words "herein," "hereof" and "hereby" and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.

 

3. Amendments to Indenture. Effective as of the Amendment Effective Time, the Indenture is amended as follows:

 

(a) Definitions. The following newly defined terms are added to Section 1.01 in the appropriate alphabetic order together with their respective definitions:

 

(i) “Amendment Effective Time” means August 31, 2021 .

 

(ii) "Collateral Documents" mean the Guaranty, Security Agreement, Intercreditor Agreement, each joinder or amendment thereto, and any other document or instrument executed and delivered by the Company or any of its affiliates for the benefit of the Convertible Notes Collateral Agent pursuant to or related to the foregoing.

 

(iii) “Convertible Notes Collateral Agent” means Wilmington Trust, National Association, in its capacity as collateral agent for the Secured Parties under the Collateral Documents.

 

(iv) “Credit Agreement Collateral Agent” means Oaktree Fund Administration, LLC, its successors and assigns as the collateral agent for the Credit Agreement Secured Parties (as defined in the Intercreditor Agreement) under the Intercreditor Agreement.

 

 

(v) “Guaranty” means that certain Guaranty dated as of the Amendment Effective Time among certain of the subsidiaries of the Company and the Convertible Notes Collateral Agent, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

(vi) “Intercreditor Agreement” means that certain First Lien Intercreditor Agreement dated as of the Amendment Effective Time among the Company and its subsidiaries party thereto, the Credit Agreement Collateral Agent and the Convertible Notes Collateral Agent, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

(vii) “Notes Documents” means the Indenture, the Notes and the Collateral Documents.

 

(viii) “Secured Parties” means the Convertible Notes Collateral Agent, the Trustee and the Holders.

 

(ix) "Security Agreement" means that certain Security Agreement dated as of the Amendment Effective Time among the Company and its subsidiaries, as grantors, and the Convertible Notes Collateral Agent, as secured party, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

(x) “Term Loan Liens” means those Liens on substantially all of the assets of the Company and its subsidiaries in order to secure the payment of certain term loans made to the Company in excess of Five Million Dollars ($5,000,000.00) from Oaktree Fund Administration, LLC, as administrative agent for certain lenders.

 

(b) Article VI Amendments. Section 6.05, Clause First, shall be amended to include the amounts payable to the Convertible Notes Collateral Agent. Any provision in Section 6.04 referring to amounts due to, or claims of, the Trustee shall be amended to include amounts due to and claims of the Convertible Notes Collateral Agent.

 

(c) Supplemental Indentures. The provisions of Article X governing amendment, supplement and waiver of the Indenture shall apply to amendment, supplement and waiver of the Notes Documents.

 

(d) Concerning the Convertible Notes Collateral Agent.

 

(i) Rights and Limitation of Liability. The Convertible Notes Collateral Agent shall be entitled to all of the rights, privileges, immunities and exculpations under the Indenture and the Collateral Documents as that afforded to the Trustee pursuant to Articles VII and XVII and the other provisions of the Indenture.

 

 

(ii) Compensation and Indemnity. The Convertible Notes Collateral Agent shall be entitled to the benefit of the provisions of Section 7.06, as if references to the Trustee in such Section were references to the Convertible Notes Collateral Agent and references to “this Indenture” or “hereunder” to include “under this Indenture and the Notes Documents” and “hereunder and thereunder”.

 

(iii) Successor Convertible Notes Collateral Agents. The Convertible Notes Collateral Agent may resign or be removed and a successor appointed in accordance with the provisions of Sections 7.07 and 7.08, as if references to the Trustee in such Section were references to the Convertible Notes Collateral Agent. If the Convertible Notes Collateral Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another Person, the successor Person without any further act will be the successor Convertible Notes Collateral Agent.

 

(iv) References to the Trustee in the definitions of Corporate Trust Office, Opinion of Counsel and Responsible Officer shall be amended to include the Convertible Notes Collateral Agent.

 

(v) Whether or not expressly stated in therein, in entering into and performing under any Notes Document, the Convertible Notes Collateral Agent shall be entitled to all of the rights, privileges, immunities and indemnities granted to it under the Indenture and the Security Agreement, which rights, privileges, immunities and indemnities shall be read together so long as the Security Agreement has not terminated.

 

4. Appointment of Convertible Notes Collateral Agent. Wilmington Trust, National Association is appointed to be the collateral agent for the Secured Parties under and pursuant to the Collateral Documents and Wilmington Trust, National Association accepts such appointment subject to the rights, privileges, immunities and indemnities set forth herein and in the Security Agreement.

 

5. Authorization to the Collateral Agent.

 

(a) The Beneficial Owners authorize and direct, and each Holder, by their acceptance of the benefits of the Collateral Documents, is deemed to authorize and direct, the Convertible Notes Collateral Agent to execute, deliver and perform its obligations under the Intercreditor Agreement, the Guaranty, the Security Agreement and any other Collateral Document required to be executed and delivered by the Convertible Notes Collateral Agent pursuant to the Guaranty, Security Agreement or Intercreditor Agreement.

 

 

(b) The Convertible Notes Collateral Agent shall act pursuant to the instructions of at least a majority in aggregate principal amount the Holders of the Notes or the Trustee with respect to the Collateral Documents. The Convertible Notes Collateral Agent shall have no discretion under the Indenture or the Collateral Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, as applicable. After the occurrence of an Event of Default, subject to the provisions of the Intercreditor Agreement, the Trustee (acting at the written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes) may direct the Convertible Notes Collateral Agent in connection with any action required or permitted by the Indenture or the Collateral Documents. Neither the Trustee nor the Convertible Notes Collateral Agent shall have any obligation to exercise any of the rights or powers vested in it by the Indenture or the Collateral Documents at the request or direction of any of the Holders unless such Holders have offered, and if requested, provided to the Trustee and the Convertible Notes Collateral Agent indemnity and/or security satisfactory to each of the Trustee and the Convertible Notes Collateral Agent against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.

 

6. Direction to Trustee. The Company and the Beneficial Owners hereby authorize and direct the Trustee to execute this Supplemental Indenture.

 

7. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

 

8. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

9. Trustee Makes No Representation. Neither the Trustee nor the Convertible Notes Collateral Agent makes any representation as to the validity or sufficiency of this Supplemental Indenture. Neither the Trustee nor the Convertible Notes Collateral Agent shall be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company.

 

10. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by PDF or other electronic transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by PDF or other electronic transmission shall be deemed to be their original signatures for all purposes.

 

11. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture.

 

12. Successors and Assigns. All covenants and agreements in this Supplemental Indenture by the Company shall bind its successors and assigns.

 

13. Severability. If and to the extent that any provision in this Supplemental Indenture shall be held invalid, illegal or unenforceable, the validity, legality, enforceability and approval of the remaining provisions shall not in any way be affected or impaired thereby, to the extent permitted by applicable law.

 

[Signature pages follow]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed on the date first written above.

 

	RUMBLEON, INC.
	By:	/s/ Marshall Chesrown
		Name: Marshall Chesrown
		Title:   President and Chief Executive Officer
	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
	By:	/s/ Sarah Vilhauer
		Name: Sarah Vilhauer
		Title:   Banking Officer

 

 

The foregoing First Supplemental Indenture is consented and agreed to as of the date of the foregoing First Supplemental Indenture:

 

	Silverback Opportunistic Credit Master Fund Limited, as a beneficial owner of the Notes
	By:	/s/ Robert Barron
		Name: Robert Barron
		Title:   Portfolio Manager
	Silverback Opportunity Master Fund Limited, as a beneficial owner of the Notes
	By:	/s/ Robert Barron
		Name: Robert Barron
		Title:   Portfolio Manager
	KASAD 2, LP, as a beneficial owner of the Notes
	By:	/s/ Robert Barron
		Name: Robert Barron
		Title:   Portfolio Manager
	Blackwell Partners LLC Series B, as a beneficial owner of the Notes
	By:	/s/ Robert Barron
		Name: Robert Barron
		Title:   Portfolio Manager
	Nineteen77 Global Multi-Strategy Alpha Master Limited, as a beneficial owner of the Notes
	By:	/s/ Connor Burke
		Name: Connor Burke
		Title:   Director
	By:	/s/ James Del Medico
		Name: James Del Medico
		Title:   Executive Director
	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Convertible Notes Collateral Agent
	By:
		Name: [NAME]
		Title: [TITLE]

 

  

 

Exhibit 10.3

 

EXECUTIVE EMPLOYMENT AGREEMENT

(RUMBLEON, INC.)

 

This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) dated as of August 31,2021, is entered by and between RumbleOn, Inc., an Nevada corporation (the “Company”), and Marshall Chesrown (“Executive”) and will be effective as of the Closing of the Transaction (each as defined below) (the “Effective Date”). Each of the Company and Executive are a “Party,” and collectively, they are the “Parties.”

 

WHEREAS, RumbleOn, Inc., along with its wholly owned subsidiaries, has entered into an Agreement and Plan of Merger and Equity Purchase Agreement, as of the date hereof (the “Merger Agreement” and the transactions contemplated thereby the “Transaction”), by which the Company (together with its subsidiaries, including its Acquired Companies through the Transaction, the “Companies”) shall be the surviving corporation as of the closing of the Transaction (the “Closing”);

 

WHEREAS, the Company’s willingness to enter into the Merger Agreement and close the Transaction is conditioned on Executive’s agreement to the terms set forth herein;

 

WHEREAS, as part of the Transaction, Executive, Marshall Chesrown, shall receive acceleration of Executive's performance RSUs issued in January 2020 and an additional 30,000 shares of RSUs; and

 

WHEREAS, the Company wishes to employ, and/or continue to employ Executive as of the Effective Date; and

 

WHEREAS, Executive wishes to be employed and/or continue to be employed by the Company as of the Effective Date.

 

NOW THEREFORE, in consideration of the mutual covenants and mutual benefits set forth herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Company and Executive agree as follows:

 

1. Representations and Warranties. Executive represents and warrants to the Company that Executive is not bound by any restrictive covenants or other obligations or commitments of any kind that would in any way prevent, restrict, hinder or interfere with Executive’s acceptance of employment under the terms and conditions set forth herein or the performance of all duties and services hereunder to the fullest extent of Executive’s ability and knowledge. Executive understands and acknowledges that Executive is not expected or permitted to use or disclose confidential information belonging to any prior employer in the course of performing Executive’s duties for the Company.

 

2. Term of Employment; Contingencies. As of the Effective Date, the Company will employ Executive and Executive accepts employment by the Company on the terms and conditions herein contained for a period (the “Employment Period”) provided in Section 5. This Agreement is contingent upon the successful closing of the Transaction. In the event that the Transaction does not close, then this Agreement shall be null and void, and the Parties shall have no further obligations hereunder.

 

 

3. Duties and Functions.

 

(a) Executive shall be employed as Chief Executive Officer of the Company and shall oversee, direct and manage the operations of the Company and engage in other responsibilities inherent within the position of Chief Executive Officer. Executive shall report to the Board of Directors (the “Board”)].

 

(b) Executive agrees to undertake the duties and responsibilities inherent in the position of Chief Executive Officer, including the responsibilities commensurate with, and customary for, that position, and which may encompass different or additional duties as may, from time to time, reasonably be assigned by the Board. Executive agrees to abide by the Company's written policies and procedures in the administration of Executive's duties.

 

(c) During the Employment Period, Executive will devote Executive’s full time and efforts to the business of the Company and will not engage in consulting work or any trade or business for Executive’s own account or for or on behalf of any other person, firm or corporation to the extent such activities materially or substantially conflict or interfere with the performance of Executive’s duties hereunder.

 

(d) It shall not be a violation of this Agreement for Executive to: serve on civic or charitable boards or committees; deliver lectures, fulfill speaking engagements or teach at educational institutions; or engage in personal investment activities, so long as such activities do not materially or substantially interfere with the performance of Executive’s duties hereunder.

 

4. Compensation.

 

(a) Base Salary: As compensation for Executive’s services hereunder, the Company agrees to pay Executive a base salary at an annual rate of not less than $500,000, payable in accordance with the Company’s normal payroll schedule, but no less frequently than monthly. The Company may withhold from any amounts payable under this Agreement such federal, state or local taxes as shall be required to be withheld pursuant to any applicable law or regulation (the "Base Salary"). Executive’s Base Salary shall be subject to review from time to time, based on corporate policy and contributions made by Executive to the enterprise, and may be increased, but not decreased, during the Employment Period, as specified in the Incentive Program attached as Exhibit A to this Agreement and expressly incorporated herein.

 

(b) Annual Cash Bonus: Beginning with calendar year 2021, Executive shall be eligible to receive an annual cash bonus award with a payout range of 0% - 125% of Executive's Base Salary (the "Annual Bonus"), upon achievement of the performance metrics adopted by the Board or the Compensation Committee in connection with the Short-Term Annual Cash Bonus Program, as described in the Incentive Program (“Performance Metrics”). Executive shall be entitled to payment of the Annual Bonus for any calendar year that the Performance Metrics are met during the Employment Period. The Company agrees that it shall not eliminate the Annual Cash Bonus, or Executive's eligibility thereunder, for the duration of the Employment Period.

 

 

(c) Short-Term Stock Incentive Plan.  For 2021, Executive shall receive a grant of Restricted Stock Units ("Initial RSUs") in connection with the Merger Agreement. Thereafter, during the Employment Period, Executive shall be eligible to receive additional Restricted Stock Units (“RSUs”) during the first week of January of each year, in accordance with the terms and conditions set forth in the Company's Short-Term Stock Incentive Plan ("STIP").  Pursuant to that STIP and as specified in the Incentive Program attached as Exhibit A to this Agreement, the RSUs shall vest over a three-year period as follows:  (i) 33.3% vesting in full on the first anniversary of the date of issue, (ii) an additional 33.3% vesting quarterly on a pro rata basis during the subsequent twelve-month period, and (iii) the final 33.4% vesting quarterly on a pro rata basis during the third twelve-month period. The Company agrees that it shall not eliminate the Short-Term Stock Incentive Plan, or Executive's eligibility thereunder, for the duration of the Employment Period.

 

(d) Long-Term Annual Stock Incentive Plan. During the Employment Period, Executive shall further be entitled to participate in the Company's Long-Term Annual Stock Incentive Plan ("LTIP"), based upon the terms and conditions set forth therein, as described in the Incentive Program attached as Exhibit A to this Agreement. The Company agrees that it shall not eliminate the Long-Term Stock Incentive Plan, or Executive's eligibility thereunder, for the duration of the Employment Period.

 

(e) Other Expenses: In addition to the compensation and benefits provided for above, the Company agrees to pay or to reimburse Executive during Executive’s employment for all reasonable, ordinary and necessary, properly documented, business expenses incurred in the performance of Executive’s services hereunder in accordance with Company policy in effect from time to time.

 

(f) Paid Time Off: Executive shall be allowed four (4) weeks of paid time off per calendar year, to be taken at times selected by Executive, as well as paid holidays, sick leave, and personal days in accordance with the Company's policies (collectively, “PTO”). Executive's accrued, unused PTO shall carry over from year to year and be paid out to Executive at time of separation of employment regardless of the reason.

 

(g) Fringe Benefits. In addition to Executive’s compensation provided by the foregoing, Executive shall be entitled to the benefits available generally to Company's senior executive level employees pursuant to the Company's programs which may now or, shall hereafter be in effect, or otherwise established by the Company, subject to the applicable terms and conditions of the benefit plans in effect at that time. Nothing herein shall affect the Company’s ability to modify, alter, terminate or otherwise change any benefit plan it has in effect at any given time, to the extent permitted by law. Notwithstanding, the Company agrees that it shall maintain and not modify, alter or terminate the Annual Cash Bonus, Short-Term Annual Stock Incentive Plan, Long-Term Annual Stock Incentive Plan and/or Executive's eligibility or vested benefits thereunder for the duration of the Employment Period, as such programs, plans and benefits are described in the Incentive Program attached as Exhibit A to this Agreement, subject to applicable laws and regulations.

 

 

5. Employment Period.

 

(a) Employment Period. The Employment Period shall commence on the Effective Date and shall continue until the third anniversary of the Effective Date (the “Initial Term”). The term of the Employment Period shall be automatically extended upon the same terms and conditions, for one additional month on the last day of every month following the Effective Date (a “Renewal Date") such that it has a continuous “rolling” three-year period, unless Executive or Company provides written notice to the other party, at least fifteen (15) days prior to the applicable Renewal Date, of its intention not to extend the term of this Agreement. Thus, at any point of non-renewal, the remaining term would be three (3) years. The period during which Executive is employed hereunder shall be considered the Employment Period.

 

(b) Termination by Executive without Good Reason. Notwithstanding the provisions of Section 5(a), Executive may terminate Executive's employment with Company and this Agreement at any time by giving the Company written notice at least thirty (30) days prior to the effective date of termination (the "Termination Date"). The Company, at its election, may require Executive to continue to perform Executive’s duties hereunder for the full thirty (30) day notice period, or may choose at any time during such 30-day notice period to accelerate the effective date of Executive’s resignation and end the employment relationship immediately (which for purposes of clarity shall not constitute a termination by the Company without Cause). If Executive chooses to terminate the employment relationship without Good Reason (as defined below), Executive shall only be entitled to receive upon such termination: (i) payment of Base Salary through the Termination Date, including through the notice period where termination has been accelerated, (ii) payment of any Annual Bonus for the prior calendar year, if not already paid; (iii) payment for any accrued but unused PTO, (iv) any right to continued benefits required by law (the foregoing (i) through (iv) shall be referred to herein as the “Accrued Obligations”). Payment of all Accrued Obligations owed herein shall be paid to Executive in lump sum, within seven (7) calendar days of the Termination Date or, if the Company accelerates the effective date of Executive's resignation, then such Accrued Obligations will be paid to Executive on such accelerated effective date.

 

(c) Termination by Executive for Good Reason. Executive may terminate Executive's employment with Company and this Agreement for Good Reason, which shall include: (A) a material reduction or diminution of Executive's authorities, duties, responsibilities or Base Salary, which is subject to the provisions of Section 4(a); (B) relocation of Executive's worksite to a location more than fifty (50) miles from Executive's then-current location; or (C) a material breach by Company of this Agreement where Executive has provided Company thirty (30) days' written notice and given the Company thirty (30) days' opportunity to cure, and the Company has failed to cure such material breach during that notice period; and further provided Executive terminates employment within ninety (90) days following the Company's failure to cure such material breach. A termination by Executive for Good Reason pursuant to this provision shall entitle Executive to payment of the Accrued Obligations, as well as Termination Compensation (as defined below) as if Executive had been terminated by the Company without Cause under Section (e)(1).

 

 

(d) Termination by Company for Cause.

 

(i) Notwithstanding the provisions of Section 5(a), at any time during the Employment Period, the Company may terminate Executive’s employment and this Agreement for Cause (defined below), with such termination taking effect upon written notice of the termination for Cause being provided to Executive. If Executive’s employment is terminated for Cause, Executive will not be entitled to and shall not receive any compensation or benefits of any type following the effective date of termination, other than the Accrued Obligations.

 

(ii) “Cause” shall be defined as termination where: (i) the Executive is convicted of fraud, theft or embezzlement against the Company or any subsidiary or affiliate thereof; (ii) the Executive is convicted of a felony or a crime involving moral turpitude; (iii) the Executive substantially breaches any material term of this Agreement and fails to cure such breach within 30 days after the receipt of written notice of such breach from the Company; or (iv) the Executive engages in gross negligence or willful misconduct that causes harm to the business and operations of the Company or a subsidiary or affiliate thereof.

 

(e) Termination by Company Without Cause. The Company may terminate Executive without Cause immediately by giving Executive written notice of such termination. Subject to the conditions set forth in Section 5(e)(ii), if Executive’s employment is terminated by the Company without Cause, in addition to the Accrued Obligations, Executive shall receive the following:

 

(i) a severance payment equivalent to three times (3x) the sum of Executive's Base Salary and the greater of either the (i) highest Annual Bonus the Executive received during the three calendar years prior to the Termination Date or (ii) the Executive’s target Annual Bonus in effect for the year in which termination occurs. Such severance payment shall be paid in accordance with the Company's regular payroll cycle, with the first payment commencing upon the pay date immediately following the effective date of the Release, if not timely revoked, as described in this Section 5(e), and on a continuing basis until the full amount has been paid;

 

(ii) if Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall provide for the payment of the Executive’s monthly COBRA payment for Executive and any of the Executive’s dependents that were participating in in such plan immediately prior to Executive’s termination (the “COBRA Subsidy”). The Company shall provide the COBRA Subsidy until the earliest of: (i) the twenty-four (24) month anniversary of the Termination Date, or (ii) the date Executive is no longer eligible to receive COBRA continuation coverage. If the Company cannot provide the COBRA Subsidy without violating applicable law or is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health insurance plans, then the Company shall pay the Executive an equivalent monthly cash payment such that Executive receives, on an after-tax basis, the same amount reimbursement for COBRA benefits for a period of eighteen (18) months; and

 

(iii) automatic and immediate vesting of any and all equity benefits including, without limitation, the Initial RSUs, and RSUs under the STIP and the LTIP (all within seven (7) calendar days of the effective date of the Release, as described in this Section 5(e)).

 

 

The above severance payments, COBRA Subsidy and vesting of all equity benefits under Sections 3(e)(i) through (iii) are collectively referred to as the “Termination Compensation”). Executive shall not be entitled to the Termination Compensation unless Executive executes a separation and release agreement which shall include a full waiver and general release of claims in favor of the Company, in substantially the form and substance attached hereto as Exhibit B (the “Release”), and such Release becoming effective, if not timely revoked under the terms thereof, within fifty-two (52) days following the Termination Date (the “Release Execution Period”). Such release shall not affect Executive’s right to a defense by legal counsel and indemnification, if any, for actions taken within the scope of Executive’s employment. If the Release Execution Period straddles two taxable years of Executive, then the Company shall pay the Termination Compensation starting in the second of such taxable years (with any missed severance payments being paid to the Executive on the first payroll date occurring in the second calendar year). The Parties hereto acknowledge that the Termination Compensation to be provided under Section 5(e)(i) is to be provided in consideration for the above-specified Release.

 

(f) Termination for Executive’s Permanent Disability. If the Executive becomes physically or mentally disabled as determined by a qualified, licensed medical physician mutually selected by the Company and Executive and such disability causes Executive to become unable for a period of more than five (5) consecutive months or for shorter periods aggregating at least five (5) months during any twelve (12) month period to perform the Executive’s duties hereunder on a substantially full-time basis, then the Company will deliver a written notice to Executive stating with specificity the reason for termination and the Executive’s employment will terminate within 30 days of the date of such notice, and this shall be considered a "disability" under this Agreement. Such termination shall not affect the Executive’s benefits under the Company’s disability insurance program, if any, then in effect. In the event Executive is terminated pursuant to this Section 5(f), Company shall pay to Executive all Accrued Obligations and Termination Compensation as if Executive had been terminated by the Company without Cause, subject to reduction by the amount of any disability insurance proceeds paid to or on behalf of Executive.

 

(g) Termination Due to Executive’s Death. This Agreement and Executive's employment hereunder will terminate immediately upon Executive’s death and the Company shall not have any further liability or obligation to Executive, Executive’s executors, heirs, assigns or any other person claiming under or through Executive’s estate, except that Executive’s estate shall receive payment for all Accrued Obligations and Termination Compensation as if Executive had been terminated by the Company without Cause.

 

(h) Termination Upon Change in Control. In the event of a “Change of Control” (defined herein) Executive may terminate Executive's employment and this Agreement within ninety (90) days of the effective date of the Change of Control upon thirty (30) days written notice. "Change in Control" shall mean (a) any sale, lease, exchange or other transfer (in one transaction or a series of transactions) of all or substantially all of the assets of the Company; or (b) any consolidation or merger or other business combination of the Company with any other entity where the shareholders of the Company, immediately prior to the consolidation or merger or other business combination would not, immediately after the consolidation or merger or other business combination, beneficially own, directly or indirectly, shares representing fifty percent (50%) of the combined voting power of all of the outstanding securities of the entity issuing cash or securities in the consolidation or merger or other business combination (or its ultimate parent corporation, if any). Upon a Change in Control, 100% of all unvested stock options and/or restricted shares held by Executive shall immediately vest (the "Accelerated Equity Vesting"). Further, upon a Change in Control, Executive shall be entitled to the Accrued Obligations and Termination Compensation as if Executive was terminated without Cause.

 

 

(i) Expiration of the Agreement. If the Agreement expires at the end of the Initial Term or any Renewal Term after proper advance notice by either Party of its/his intent not to renew, the Agreement shall expire and Executive shall receive only the Accrued Obligations as of the date of expiration.

 

(j) Continuing Obligations. The obligations imposed on Executive with respect to non-competition, non-solicitation, confidentiality, non-disclosure and assignment of rights to inventions or developments in this Agreement shall continue, notwithstanding the termination of the employment relationship between the Parties, as set forth in Section 7.

 

6. Company Property. All correspondence, records, documents, software, promotional materials, and other Company property, including all copies, which come into Executive’s possession by, through or in the course of Executive’s employment, regardless of the source and whether created by Executive, are the sole and exclusive property of the Company, and immediately upon the termination of Executive’s employment, or at any time the Company shall request, Executive shall return to the Company all such property of the Companies, without retaining any copies, summaries or excerpts of any kind or in any format whatsoever. Executive shall not destroy any of the Companies' property, such as by deleting electronic mail or other files, other than in the normal course of Executive’s employment. Executive further agrees that should Executive discover any Company property or Confidential Information in Executive’s possession after the return of such property has been requested, Executive agrees to return it promptly to Company without retaining copies, summaries or excerpts of any kind or in any format whatsoever.

 

7. Restrictive Covenants. Executive agrees and acknowledges that, in connection with Executive’s employment with the Company, Executive will be provided with access to and become familiar with confidential and proprietary information, trade secrets, and substantial relationships belonging to the Companies. Accordingly, in consideration of Executive’s employment with the Company pursuant to this Agreement, any payments made to the Executive as set forth in Section 5 (including the Accelerated Equity Vesting), and other good and valuable consideration, the receipt of which is hereby acknowledged, Executive agrees to the following restrictive covenants:

 

(a) Non-Competition. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s own behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) engage directly or indirectly in the Restricted Business anywhere in the Restricted Territory; or (b) directly or indirectly be or become an officer, director, stockholder, owner, affiliate, partner, member, investor, joint venture, employee, agent, representative, consultant, lender, advisor, manager of, for or to, or otherwise be or become associated with or acquire or hold (of record, beneficially or otherwise) any direct or indirect interest in, any individual or entity that engages directly or indirectly in the Restricted Business anywhere in the Restricted Territory; provided, however, that Executive may, without violating this Section 7(a), (x) purchase, own, market, and/or sell classic, antique, exotic, and similar vehicles, including through the use of a dealer license, and (y) own, as a passive investment, shares of capital stock of a publicly-held corporation that engages in the Restricted Business if (i) such shares are actively traded on an established national securities market in the United States or any other foreign securities exchange, (ii) the number of shares of such corporation’s capital stock that are owned beneficially (directly or indirectly) by the Executive represents less than one percent (1%) of the total number of shares of such corporation’s capital stock outstanding, and (iii) Executive is not associated directly or indirectly with such corporation or with any affiliate of such corporation.

 

 

(b) Non-Solicitation of Customers and Other Business Relations. Executive agrees that during the Restricted Period, Executive shall not, either on Executive's behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) solicit, induce or attempt to solicit or induce any business, enterprise, or individual who, during the preceding two-year period, has a business relationship with the Companies (including any customer, licensee, supplier, manufacturer or vendor) (i) to cease doing business with the Companies, or (ii) to diminish or materially alter in a manner harmful to the Companies, such business, enterprise, or individual’s relationship with the Companies; or (iii) to purchase, contract for or receive any products or services from any such business relationship of Company (other than on behalf of the Companies) that engages in the Restricted Business anywhere within the Restricted Territory; provided, however, that nothing contained in this Section 7(b) shall prevent Executive from contracting with a third party who has or had a business relationship with Companies if such contracting does not adversely affect such third party’s business relationship with the Companies.

 

(c) Non-Hiring or Solicitation of Employees and Contractors. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s own behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) directly or indirectly hire or solicit for hire any employee, independent contractor, or consultant or any person who was an employee, independent contractor, or consultant of the Companies within the preceding twelve (12) months, or (b) directly or indirectly encourage, induce, attempt to induce, solicit or attempt to solicit (on Executive’s own behalf or on behalf of any other business, enterprise, or individual) any employee, independent contractor, or consultant to leave or curtail his or her employment or engagement with the Companies; provided, however, that notwithstanding the foregoing, this Section 7(c) shall not prevent Executive from undertaking general solicitations of employment not specifically targeted at employees, independent contractors, or consultants of the Companies (so long as Executive does not, directly or indirectly, specifically solicit for hire any such employee, independent contractor, or consultant).

 

(d) Definitions. For purposes of this Section 7:

 

(i) “Restricted Business” shall mean the operation of a technology-based motor vehicle dealer e-commerce platform and/or any other internet-based platform that allows dealers, consumers, and any other business, enterprise, or individual to buy, sell, trade, finance, and/or transport pre-owned cars, trucks, snowmobiles, watercraft, motorcycles, ATVs, UTVs, scooters, side-by-sides, sport bikes, cruisers, or other modes of transportation, as well as the sale, leasing, rental, financing, servicing (including supply of parts) and ancillary activities relating to new and used motorcycles, ATVs, UTVs, scooters, side-by-sides, sport bikes, two- and three-wheeled cruisers, powered watercraft, and any other business engaged in by Companies during Executive's employment therewith.

 

 

(ii) "Restricted Period" shall mean the period while Executive is in the employ of the Company and/or any of its affiliates and for a three (3) year period following the end of such employment for any reason, provided, however, that in the event of any breach by Executive of this Section 7, the Restricted Period shall be automatically extended by a number of days equal to the total number of days in the period from the date on which such breach shall have first occurred through the date as of which such breach shall have been fully cured.

 

(iii) “Restricted Territory” means Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, and each territory of the United States, including Washington, D.C.

 

(e) Reasonableness of Restrictive Covenants. The Parties agree that the relevant public policy aspects of post-employment restrictive covenants have been discussed, and that every effort has been made to limit the restrictions placed upon Executive to those that are reasonable and necessary to protect the Companies' legitimate interests. Executive acknowledges that, based upon Executive’s education, experience, and training, the restrictions set forth in this Section 7 will not prevent Executive from earning a livelihood and supporting himself and Executive’s family during the relevant time period. Executive further acknowledges that, because the Companies market their products and services throughout the Restricted Territory, a more narrow geographic limitation on the restrictive covenants set forth above would not adequately protect the Companies' legitimate business interests.

 

(f) Modification. The Parties agree that if any restriction set forth in this Section 7 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or geographic area as to which it may be enforceable.

 

(g) Independence of Obligations. The Parties agree that the restrictive covenants set forth in this Section 7 are not intended to, and shall not, supersede any restrictive covenants contained in any other agreement (including, but not limited to the Merger Agreement or other agreement executed in connection with the Transaction, or if applicable, any stock or stock-linked award agreement, or otherwise), and that the provisions of Section 7 (along with the Confidentiality provisions of Section 8 below) shall be construed as separate and distinct obligations of Executive which shall expressly survive the termination of Executive's employment with the Company.

 

(h) Injunctive Relief. The Parties agree that the restrictions contained in this Section 7 are necessary for the protection of the business and goodwill of the Companies and are considered by Executive to be reasonable for such purposes. Executive agrees that any material breach of Section 7 will result in irreparable harm and damage to the Companies that cannot be adequately compensated by a monetary award. Accordingly, it is expressly agreed that in addition to all other remedies available at law or in equity (including, without limitation, money damages from Executive), the Company and/or such affiliate shall be entitled to a temporary restraining order, preliminary injunction or such other form of injunctive or equitable relief as may be used by any court of competent jurisdiction to restrain or enjoin Executive from breaching any such covenant or provision or to specifically enforce the provisions hereof, without the need to post any bond or other security.

 

 

8. Protection of Confidential Information.

 

(a) Executive agrees that all information, whether or not in writing, relating to the business, technical or financial affairs of the Companies and that is generally understood in the industry as being confidential and/or proprietary information, is the exclusive property of the Companies. Executive agrees to hold in a fiduciary capacity for the sole benefit of the Companies all secret, confidential and/or proprietary information, knowledge, and data, including trade secrets, relating to the Companies obtained during Executive’s employment with the Company or any of its predecessors or affiliates, including but not limited to any trade secrets, confidential or secret designs, website technologies, content, processes, formulae, plans, manuals, devices, machines, know-how, methods, compositions, ideas, improvements, financial and marketing information, costs, pricing, sales, sales volume, salaries, methods and proposals, customer and prospective customer lists, customer identities, customer volume, or customer contact information, identity of key personnel in the employ of customers and prospective customers, amount or kind of customer’s purchases from the Companies, manufacturer lists, manufacturer identities, manufacturer volume, or manufacturer contact information, identity of key personnel in the employ of manufacturers, amount or kind of the Companies' purchases from manufacturers, system documentation, hardware, engineering and configuration information, computer programs, source and object codes (whether or not patented, patentable, copyrighted or copyrightable), related software development information, inventions or other confidential or proprietary information belonging to the Companies or directly or indirectly relating to the Companies' business and affairs (“Confidential Information”). Confidential Information shall not include information (i) that has entered the public domain through no fault of Executive, (ii) rightfully known by the receiving person without obligation of confidentiality to any third party prior to receipt of same from the disclosing person, (iii) independently developed by the receiving person without using or referring to any Confidential Information of the Company, and (iv) generally made available to the public by the disclosing person without obligation of confidentiality. Executive agrees that Executive will not at any time, either during the Employment Period or the Confidentiality Period (as defined below), disclose to anyone any Confidential Information, or utilize such Confidential Information for Executive’s own benefit, or for the benefit of third parties without written approval by an officer of the Company. For purposes of this section, the “Confidentiality Period” means for the period of three (3) years after the Termination Date. Executive further agrees that all memoranda, notes, records, data, schematics, sketches, computer programs, prototypes, or written, photographic, magnetic or other documents or tangible objects compiled by Executive or made available to Executive during the Employment Period concerning the business of the Companies and/or their respective clients, including any copies of such materials, shall be the property of the Companies and shall be delivered to the Company on the termination of Executive’s employment, or at any other time upon request of the Company.

 

 

(b) In the event Executive is questioned by anyone not employed by the Company or by an employee of or a consultant to the Company not authorized to receive such information, in regard to any Confidential Information or any other secret or confidential work of the Companies, or concerning any fact or circumstance relating thereto, or in the event that Executive becomes aware of the unauthorized use of Confidential Information by any party, whether competitive with the Company or not, Executive will promptly notify an officer of the Company.

 

(c) Court-Ordered Disclosure. In the event that, at any time during Executive’s employment with the Company or at any time thereafter, Executive receives a request to disclose any Confidential Information under the terms of a subpoena or order issued by a court or by a governmental body, Executive agrees to notify the Company immediately of the existence, terms, and circumstances surrounding such request, to consult with the Company on the advisability of taking legally available steps to resist or narrow such request; and, if disclosure of such Confidential Information is required to prevent Executive from being held in contempt or subject to other penalty, to furnish only such portion of the Confidential Information as, in the written opinion of counsel satisfactory to the Company, Executive is legally compelled to disclose, and to exercise Executive’s reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.

 

(d) Non-Interference with Governmental Agency Rights. The provisions of this Agreement and of any other agreement between Executive and the Company regarding confidentiality and non-disclosure are not intended to interfere with, or waive, any right or obligation (if any) to file a charge, cooperate, testify, report, or participate in an investigation with any appropriate federal, state or local governmental agency, including the Securities and Exchange Commission ("SEC"), the Equal Employment Opportunity Commission ("EEOC"), the Occupational Safety and Health Administration ("OSHA"), the National Labor Relations Board ("NLRB"), or any other federal, state or local government agency charged with enforcement of any law, rule, or regulation applicable to Company's business ("Governmental Agency"); including the ability to communicate with such agency; the reporting of possible violations of any law, rule or regulation; making other disclosures that are protected under whistleblower provisions of any law, rule or regulation; or the receiving of an award for information provided to any Governmental Agency.

 

(e) Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, Executive acknowledges that Executive shall not have criminal or civil liability under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the trade secret to Executive’s attorney and may use the trade secret information in the court proceeding, if Executive (X) files any document containing the trade secret under seal and (Y) does not disclose the trade secret, except pursuant to court order.

 

 

9. Intellectual Property.

 

(a) Disclosure of Inventions. Executive will promptly disclose in confidence to the Company all inventions, improvements, processes, products, designs, original works of authorship, formulas, processes, compositions of matter, computer software programs, Internet products and services, e-commerce products and services, e-entertainment products and services, databases, mask works, trade secrets, product improvements, product ideas, new products, discoveries, methods, software, uniform resource locators or proposed uniform resource locators (“URLs”), domain names or proposed domain names, any trade names, trademarks or slogans, which may or may not be subject to or able to be patented, copyrighted, registered, or otherwise protected by law (the “Inventions”) that Executive makes, conceives or first reduces to practice or creates, either alone or jointly with others, during the period of Executive’s employment with the Company, in the course of Executive’s employment, and whether or not such Inventions are patentable, copyrightable or able to be protected as trade secrets, or otherwise able to be registered or protected by law.

 

(b) Assignment of Company Inventions; Work for Hire. Executive agrees that all Inventions that (i) are developed using equipment, supplies, facilities or trade secrets of the Companies, (ii) result from work performed by Executive for the Companies, or (iii) relate to the Companies' business or current or anticipated research and development (the “Company Inventions”), will be the sole and exclusive property of the Company and are hereby irrevocably assigned by Executive to the Company from the moment of their creation and fixation in tangible media. Executive further acknowledges and agrees that any copyrightable works prepared by Executive within the course of Executive’s employment are “works for hire” under the Copyright Act and that the Company will be considered the author and owner of such copyrightable works.

 

(c) Assignment of Other Rights. In addition to the foregoing assignment of Company Inventions to the Company, Executive hereby irrevocably transfers and assigns to the Company: (i) all worldwide patents, patent applications, copyrights, mask works, trade secrets and other intellectual property rights in any Company Invention; and (ii) any and all “Moral Rights” (as defined below) that Executive may have in or with respect to any Company Invention. Executive also hereby forever waives and agrees never to assert any and all Moral Rights Executive may have in or with respect to any Company Invention, even after termination of Executive’s work on behalf of the Companies. “Moral Rights” means any rights to claim authorship of an Company Invention, to object to or prevent the modification of any Company Invention, or to withdraw from circulation or control the publication or distribution of any Company Invention, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”

 

(d) Assistance. Executive agrees to reasonably cooperate with the Company, at the Company’s sole cost and expense, to obtain and enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company Inventions in any and all countries. At the Company’s reasonably request, Executive will execute documents necessary for use in obtaining or enforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. Executive’s obligations under this section will continue for a period of twelve (12) months beyond the termination of Executive’s employment with the Company, provided that the Company will compensate Executive at a reasonable rate after such termination for time or expenses actually spent by Executive at the Company’s request on such assistance. Executive appoints the Secretary of the Company as Executive’s attorney-in-fact to execute documents on Executive’s behalf sole for the limited purpose set forth in this Section 9(d).

 

 

10. Publicity. Neither Party shall issue, without consent of the other Party, any press release or make any public announcement with respect to this Agreement or the employment relationship between them, or the ending of such relationship.

 

11. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their heirs, personal representatives, successors and assigns. Executive acknowledges and agrees that the Company may, in its sole discretion, assign this Agreement (i) to an affiliate of the Company at any time, or (ii) in the event the Company is acquired, is a non-surviving party in a merger, or transfers substantially all of its assets, to the transferee or surviving company, in each case without being required to obtain Executive’s consent. The Parties understand that the obligations of Executive are personal and may not be assigned by Executive.

 

12. Entire Agreement. This Agreement and the Exhibits attached hereto contains the entire understanding of Executive and the Company with respect to employment of Executive and supersedes any and all prior understandings, written or oral, regarding the terms or conditions of Executive's employment with the Company. Notwithstanding the foregoing, except for the provisions of the Incentive Program attached hereto as Exhibit A, the provisions of this Agreement are not intended to, and shall not, supersede any restrictive covenants contained in any other agreements (including, but not limited to, any obligations related to non-competition, non-solicitation, confidentiality, non-disparagement, and/or assignment of inventions in an agreement entered into between Executive and the Company or any related or affiliated entity), and the provisions of this Agreement and of any other such agreements shall be construed as separate and distinct obligations of Executive. This Agreement may not be amended, waived, discharged or terminated orally, but only by an instrument in writing, specifically identified as an amendment to this Agreement, and signed by both Parties. By entering into this Agreement, Executive certifies and acknowledges that Executive has carefully read all of the provisions of this Agreement and that Executive voluntarily and knowingly enters into this Agreement.

 

13. Severability; Modification. If any portion, provision, section or subsection of this Agreement is determined to be unreasonable or unenforceable, for any reason whatsoever, the parties agree that such portion, provision, section or subsection may be severed, modified or narrowed, either by a court or the Company, so as to provide the maximum legally enforceable protection of the Companies' legitimate business interests, without negating or impairing any other restrictions or agreements set forth herein. If any portion, provision, section or subsection of this Agreement is held to be invalid, illegal, or unenforceable, it shall not affect the other provisions of this Agreement, which shall remain in effect. This Agreement shall be construed in all respects as if such invalid, illegal or unenforceable provision was omitted..

 

 

14. Tax Consequences. Except as otherwise specifically provided in this Agreement, the Company will have no obligation to any person entitled to the benefits of this Agreement with respect to any tax obligation any such person incurs as a result of or attributable to this Agreement, including all supplemental agreements and employee benefits plans incorporated by reference therein, or arising from any payments made or to be made under this Agreement or thereunder.

 

15. Golden Parachute Excise Tax.

 

(a) Parachute Payments. If any payment or benefit Executive would receive pursuant to this Agreement or pursuant to any other agreement with the Company following a change in the ownership or effective control of the Company or change in the ownership of a substantial portion of the assets of the Company (which change, as further defined in Section 280G of the Code and regulations promulgated thereunder (“Section 280G”), is referred to herein as a “Change in Control” from the Company or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G, and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: (1) cash payments, in the following order: (a) first, severance payments under this Agreement, (b) second, severance payments under any other agreement with the Company and (c) third, any other cash payments under any of the foregoing agreements; (2) cancellation of the acceleration of vesting of stock options, restricted stock, restricted stock units or any other awards that vest based on attainment of performance measures; (3) cancellation of the acceleration of vesting of stock options, restricted stock and restricted stock units or any other awards that vest only based on Executive’s continued service to the Company, taking the last ones scheduled to vest (absent the acceleration) first, and (4) other non-cash forms of benefits.

 

(b) Calculations. The foregoing calculations will be performed at the expense of the Company by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company. The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within thirty (30) calendar days after the Change in Control, the date of termination, if applicable, and any such other time or times as may be reasonably requested by the Company or Executive. If the Accounting Firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment.  Any good faith determinations of the Accounting Firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

 

 

16. Section 409A.

 

(a) This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and Treasury guidance promulgated thereunder (“Section 409A of the Code”). If the Company determines in good faith that any provision of this Agreement would cause Executive to incur an additional tax, penalty, or interest under Section 409A of the Code, the Company and Executive shall use reasonable efforts to reform such provision, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code or causing the imposition of such additional tax, penalty, or interest under Section 409A of the Code. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to Executive under this Agreement.

 

(b) For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event may Executive, directly or indirectly, designate the calendar year of payment.

 

(c) With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, Executive, as specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

 

(d) “Termination of employment,” “resignation,” or words of similar import, as used in this Agreement means, for purposes of any payments under this Agreement that are payments of deferred compensation subject to Section 409A of the Code, Executive’s “separation from service” as defined in Section 409A of the Code.

 

(e) To the extent that Section 409A of the Code would cause an adverse tax consequence to the Executive upon accelerating any payment of Termination Compensation pursuant to Section 5(h) upon a Change in Control (“Section 409A Payments”), a Change in Control shall not be deemed to occur with respect to such Section 409A Payments unless the Change in Control qualifies as a “Change in the Ownership or Effective Control of a Corporation or in the Ownership of a Substantial Portion of the Assets of a Corporation” under Treasury Department Regulation 1.409A-3(i)(5), as revised from time to time in either subsequent regulations or other guidance and such Section 409A Payments shall be made at the time such payments would have otherwise been made absent the Change in Control.

 

(f) Neither the Company nor Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A.

 

 

(g) If a payment obligation under this Agreement arises on account of Executive’s separation from service while Executive is a “specified employee” (as defined under Section 409A of the Code and determined in good faith by the Company), any payment of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be paid within 15 days after the end of the six-month period beginning on the date of such separation from service or, if earlier, within 15 days after the appointment of the personal representative or executor of Executive’s estate following Executive’s death.

 

17. Governing Law. The law, including the statutes of limitation, of the State of Delaware shall govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to its or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.

 

18. Notices. Any notice provided for in this Agreement shall be provided in writing. Notices shall be effective from the date of service, if served personally on the Party to whom notice is to be given, or on the second day after mailing, if mailed by first class mail, postage prepaid. Notices shall be properly addressed to the Parties at their respective addresses or to such other address as either Party may later specify by notice to the other.

 

19. Dispute Resolution. The Parties agree that, except as otherwise provided in this Agreement, any controversy, claim or dispute arising out of or relating to this Agreement or the breach thereof, or arising out of or relating to the employment of Executive, or the termination thereof, including any statutory or common law claims under federal, state, or local law, including all laws prohibiting discrimination in the workplace, shall first be submitted to mediation conducted by the Judicial Arbitration and Mediation Service (JAMS). The Parties agree to attempt in good faith to resolve any such dispute in the course of such mediation. If any such dispute is not resolved by mediation, the Parties agree that such dispute shall be submitted to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, or any federal court of competent jurisdiction sitting in the State of Delaware, and the Parties hereby waive any and all defenses and/or objections to jurisdiction and venue in such courts. Notwithstanding anything herein to the contrary, the Parties further acknowledge and agree that, due to the nature of the confidential information, trade secrets, and intellectual property belonging to the Companies to which Executive has or will be given access, and the likelihood of significant harm that the Company would suffer in the event that such information was disclosed to third parties, nothing in this paragraph shall preclude the Company from immediately going to court to seek injunctive relief to prevent Executive from violating the obligations established in Sections 7, 8 or 9 of this Agreement. Each of the parties irrevocably agrees to waive any and all rights they may have to trial by jury in any action, proceeding or claim of any nature relating to this Agreement, or the enforcement of this Agreement, and acknowledge that such waiver is knowing and voluntary. In the event of any dispute regarding the interpretation or enforcement, or otherwise arising out of this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney's fees and costs, including through appeal.

 

 

20. Indemnification. The Company shall indemnify and hold harmless Executive for any liability to any third-party incurred by reason of any act or omission performed by Executive while acting in good faith on behalf of the Company and within the scope of the authority of Executive pursuant to this Agreement and under the rules and policies of the Company, except that Executive must have in good faith believed that such action was in the best interest of the Company and such course of action or inaction must not have constituted gross negligence, fraud, willful misconduct, or breach of a fiduciary duty.

 

21. Miscellaneous.

 

(a) No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.

 

(b) The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.

 

(c) The language in all parts of this Agreement will be construed, in all cases, according to its fair meaning, and not for or against either Party hereto. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party will not be employed in the interpretation of this Agreement.

 

(d) Capitalized terms used in this Agreement have the meanings ascribed to them by definition in this Agreement; or if not expressly defined in this Agreement, to the meanings ascribed in the Merger Agreement.

 

(e) The obligations of Company under this Agreement, including its obligation to pay the compensation provided for in this Agreement, are contingent upon Executive’s performance of Executive’s obligations under this Agreement.

 

(f) This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement.

 

 

IN WITNESS WHEREOF, each of the Parties hereto has caused this Executive Employment Agreement to be duly executed, by its authorized officers or individually, on the Effective Date.

 

	RumbleOn, Inc.
	By:	/s/ Peter Levy
		Name: Peter Levy
		Title:   Chief Operating Officer
	/s/ Marshall Chesrown
	Marshall Chesrown

 

 

Exhibit A to Executive Employment Agreement

 

[See Executive Incentive Plan included in definitive proxy statement filed on July 1, 2021.]

 

 

Exhibit B to Executive Employment Agreement

 

Release Agreement

 

This Release Agreement (this “Release”) is executed pursuant to Section 5(e)(iii) of that certain Executive Employment Agreement, dated as of August 31, 2021 (the “Employment Agreement”), between RumbleOn, Inc., a Nevada corporation (the “Company”), and Marshall Chesrown (“Executive”). All terms capitalized and not defined herein shall have the meaning given in the Employment Agreement. Executive acknowledges that the Termination Compensation under this Release does not, in any way, extend the period of employment or continuous service beyond the last day of employment or confer any other rights or benefits upon Executive other than what may be set forth expressly herein.

 

1. Full and Adequate Consideration. Executive acknowledges and agrees that the Termination Compensation shall constitute full and adequate consideration that Executive would not otherwise be entitled but for the promises and obligations set forth in this Release, including Executive's waiver and general release of claims against Company, cooperation during any transitional period, and adherence to other post-termination obligations. Executive acknowledges that Company has no further obligation to Executive, including to pay any additional amounts of money or benefits, other than as set forth below:

 

(a) Severance Payment. In accordance with and pursuant to Section 5(e)(i) of the Employment Agreement, if Executive is terminated by Company (other than with Cause under Section 5(d), by Executive without Good Reason under Section 5(b), or upon Expiration of the Agreement under Section 5(i)), then in addition to the Accrued Obligations, Executive shall receive a severance payment equivalent to three times (3x) the sum of Executive's Base Salary and the greater of either the (i) highest Annual Bonus the Executive received during the three calendar years prior to the Termination Date or (ii) the Executive’s target Annual Bonus in effect for the year in which termination occurs. Such severance payment shall be paid in accordance with the Company's regular payroll cycle, with the first payment commencing upon the pay date immediately following the effective date of this Release, if not timely revoked under the terms hereof, within fifty-two (52) days following the Termination Date (the “Release Execution Period”). If the Release Execution Period straddles two taxable years of Executive, then the Company shall pay the Termination Compensation starting in the second of such taxable years (with any missed severance payments being paid to Executive on the first payroll date occurring in the second calendar year).

 

(b) COBRA Subsidy. If Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall provide for the payment of the Executive’s monthly COBRA payment for Executive and any of the Executive’s dependents that were participating in in such plan immediately prior to Executive’s termination (the “COBRA Subsidy”). The Company shall provide the COBRA Subsidy until the earliest of: (i) the twenty-four (24) month anniversary of the Termination Date, or (ii) the date Executive is no longer eligible to receive COBRA continuation coverage. If the Company cannot provide the COBRA Subsidy without violating applicable law or is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health insurance plans, then the Company shall pay the Executive an equivalent monthly cash payment such that Executive receives, on an after-tax basis, the same amount reimbursement for COBRA benefits for a period of eighteen (18) months.

 

 

Exhibit B to Executive Employment Agreement

 

(c) Equity Benefits. Executive shall have automatic and immediate vesting of any and all equity benefits including, without limitation, the Initial RSUs, and RSUs under the STIP and the LTIP all (within seven (7) calendar days of the effective date of this Release, as described in Section 5(e) of the Employment Agreement).

 

2. Waiver and Release of Claims.

 

(a) General Release. Executive, for and on behalf of himself and each of his heirs, administrators, executors, personal representatives, beneficiaries, and assigns, to the maximum extent permitted by law, does hereby release and forever discharge the “Company Releasees” hereunder, consisting of RumbleOn, Inc., and each of its past, present and future parents, subsidiaries, divisions, affiliates, predecessors, successors, partners, associates, heirs, assigns, agents, managers, members, directors, officers, employees, representatives, lawyers, insurers, owners, principals, shareholders, employee benefit plans and fiduciaries, administrators, transferees and assigns and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called “Claims”), which Executive now has or may hereafter have against the Company Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof. However, the parties expressly acknowledge that this waiver and release shall not affect Executive's right to a defense by legal counsel and indemnification to the extent such rights otherwise exist under the terms of the Employment Agreement, including Section 20 thereof. The Claims released by Executive in this Section 2(a) include, without limiting the generality of the foregoing, any Claims in any way arising out of, based upon, or related to:

 

(i) Executive’s employment by or service to Company or any of the other Company Releasees, or the termination thereof;

 

(ii) any alleged breach of the Employment Agreement or Company’s employee handbook, policies or procedures; or

 

(iii) any alleged tort, including but not limited to misrepresentation, defamation, interference with business relationships, intentional or negligent infliction of emotional distress, negligence or wrongful discharge.

 

Notwithstanding the foregoing, this waiver and release shall not apply to or affect Executive’s rights under this Agreement including, without limitation, any claim against Company and/or the Company Releasees for breach or default hereunder.

 

(b) Statutory Claims. Executive further knowingly and voluntarily releases and discharges the Company Releasees, collectively, separately and severally, for any and all Claims based upon any alleged violation of any federal, state or local statute, ordinance or regulation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended 1991, 42 U.S.C. § 1981; the Americans with Disabilities Act ("ADA"); the Employee Retirement Income Security Act ("ERISA"); the Consolidated Omnibus Budget Reconciliation Act ("COBRA"); the Occupational Safety and Health Act ("OSHA"); the Fair Labor Standards Act ("FLSA"); the Family and Medical Leave Act ("FMLA"); the Equal Pay Act ("EPA"); the Worker Adjustment and Retraining Notification Act ("WARN"); the Immigration Reform and Control Act ("IRCA"); the Sarbanes-Oxley Act; the Federal False Claims Act; the Internal Revenue Code; the National Labor Relations Act; and any and all other local, state and/or federal human or civil rights, wage-hour, pension or labor laws, rules, regulations and/or ordinances which relate to employment, discrimination, retaliation, or payment of wages or other compensation or otherwise.

 

 

Exhibit B to Executive Employment Agreement

 

(c) Release of Claims Under the ADEA. In addition to the foregoing, Executive hereby knowingly and voluntarily releases and discharges the Company Releasees, collectively, separately and severally, from and for any and all Claims arising under the Age Discrimination in Employment Act ("ADEA") and/or the Older Workers Benefit Protection Act ("OWBPA"), which Executive and/or his heirs, administrators, executors, personal representatives, beneficiaries, and assigns may have or claim to have against any of the Company Releasees (such release and waiver referred to as the “ADEA Waiver”). Notwithstanding any other provision or section of this Agreement, Executive does not hereby waive any rights or claims under the ADEA/OWBPA that may arise after the time Executive signs this Agreement.

 

(d) Consideration Period For ADEA Waiver. Executive hereby acknowledges that Executive has been given a period of at least twenty-one (21) days (or, to the extent required by applicable law, forty-five (45) days) to consider the terms of this Release, that Executive is advised to consult with an attorney prior to executing this Release, and that Executive has received good and valuable consideration, to which Executive is otherwise not entitled, in exchange for Executive's execution of this Release. Executive and Company acknowledge and agree that any revisions made to this Release after it was initially delivered to Executive were either not material or were requested by Executive, and expressly agree that such changes do not re-start the consideration period described in the preceding sentence.

 

3. Non-Interference with Governmental Agency Rights. Executive understands that the terms of this Release, including the provisions regarding waiver and release, confidentiality, and non-disparagement, are not intended to interfere with, or waive, any right or obligation (if any) to file a charge, cooperate, testify, report, or participate in an investigation with any appropriate federal, state or local governmental agency, including the Securities and Exchange Commission ("SEC"), the Equal Employment Opportunity Commission ("EEOC"), the Occupational Safety and Health Administration ("OSHA"), the National Labor Relations Board ("NLRB"), or any other federal, state or local government agency charged with enforcement of any law, rule, or regulation applicable to Company's business ("Governmental Agency"); including the ability to communicate with such agency; the reporting of possible violations of any law, rule or regulation; making other disclosures that are protected under whistleblower provisions of any law, rule or regulation; or the receiving of an award for information provided to any Governmental Agency. However, Executive acknowledges and understands that by signing this Release, Executive is fully waiving and releasing the right to receive or accept any individual remedy or relief, monetary or otherwise, obtained through the efforts of any such agency on Executive's behalf or on behalf of a class of individuals through which action or proceeding Executive might otherwise have a right or benefit.

 

4. Post-Termination Survival of Restrictive Covenants. Executive acknowledges and understands, that despite Executive's termination of employment, the obligations set forth in Section 7 (Restrictive Covenants) and Section 8 (Confidentiality), and the rights and remedies for breach and enforcement thereof in the Employment Agreement, shall remain in full force and effect for the durations expressly stated therein, if not unlimited, and as otherwise specified in this Release, regardless of the circumstances of Executive’s termination.

 

 

Exhibit B to Executive Employment Agreement

 

5. Representations by Executive.

 

(a) No Pending Disputes. Executive represents and warrants that no litigation, dispute or other proceeding has been filed or is pending by Executive against Company or any other Company Releasee, and that Executive has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations, or causes of action released herein.

 

(b) No Pending Obligations Owed by Company. Executive represents and warrants that Executive has received all wages and compensation owed through the date Executive signs this Release and that Executive has received all other amounts due from Company through the date Executive signs this Release, including, but not limited to, all bonuses, commissions, paid time off, reimbursements, and any other benefits to which Executive may be entitled from any of the Company Releasees, except for the Termination Compensation provided under Section 5(e) of the Employment Agreement, which will be paid as contemplated therein, and any vested benefits under any Company Releasee’s employee benefit plans which shall be governed by the terms of the applicable plan document and award agreements. Executive further represents and warrants that Executive has been provided with all leave or other accommodations (including under the Family and Medical Leave Act and/or the Americans with Disabilities Act) to which Executive may have been entitled, if any, and that Executive has not suffered any workplace illness or injury other than any illness or injury which Executive has already advised Company in writing, if any.

 

(c) Return of Property/No Improper Disclosure. Executive represents and warrants that Executive has returned all Company property as of the date Executive signs this Release. Executive represents and warrants that Executive has not disclosed any Confidential Information (as defined in the Employment Agreement) except as specifically authorized in the performance of Executive's duties for Company or as otherwise permitted in the Employment Agreement.

 

6. Non-Admission of Liability. This Release shall not be construed as an admission of liability by Company or any other Company Releasee, or as an admission that Company or other any Company Releasee has acted in any way wrongfully towards Executive.

 

7. Confidentiality of Release. Executive acknowledges and agrees that Executive will not, unless required by law or as otherwise permitted by Company, disclose to others any information regarding the terms of this Release, the benefits being paid under it or the fact of its payment (which are deemed confidential), except that Executive may disclose this information to Executive's attorney, accountant or other professional advisor to whom Executive must make the disclosure in order to receive professional services and Executive may disclose or file this Release and the Employment Agreement to the extent required to be filed in any legal proceeding or arbitration brought by or against the Executive in connection with this Release or the Employment Agreement. However, Executive acknowledges that Executive must instruct the parties who have been disclosed such information, as applicable, about the confidential nature of this Agreement and their obligation to maintain the confidentiality of this information, and shall be responsible for any breach of such obligation by such parties.

 

 

Exhibit B to Executive Employment Agreement

 

8. Binding Release. This Release is binding on the parties hereto and their respective successors, heirs, administrators, executors, and assigns. The rights and benefits of Executive under this Agreement being personal to the Executive, they may not be assigned by Executive without the prior written consent of Company; provided, however, Executive expressly acknowledges and agrees that the provisions of this Release, and any and all terms which are expressly incorporated herein, are enforceable against Executive by Company's affiliates, successors and/or assigns or any other Company Releasee, which shall be deemed third party beneficiaries hereof.

 

9. Entire Understanding. This Release constitutes the sole and entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous understandings or agreements between the parties, whether oral or written, on such subject matter, except as expressly provided herein; provided, that, the provisions of the Merger Agreement or other agreement executed in connection with the Transaction, or if applicable, any stock or stock-linked award agreement, or otherwise, shall remain in full force and effect, including but not limited to the restrictive covenants and other obligations thereof.

 

10. Severability. In case any one or more of the provisions in this Release, or of those surviving post-termination provisions of the Employment Agreement incorporated herein, or a portion thereof, shall be held to be invalid, illegal or unenforceable for any reason, (except for the waiver/release provision of Section 2 above), the invalidity, illegality or unenforceability of any provisions or portions shall not affect any other provision or portion hereof; this Release shall be construed as if the invalid, illegal or unenforceable provision or portion had never been contained in this Agreement.

 

11. Governing Law; Venue. The law, including the statutes of limitation, of the State of Delaware shall govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to its or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.

 

12. Dispute Resolution. The Parties agree that, except as otherwise provided in this Release, any controversy, claim or dispute arising out of or relating to this Release or the breach thereof, shall first be submitted to mediation conducted by the Judicial Arbitration and Mediation Service (JAMS). The Parties agree to attempt in good faith to resolve any such dispute in the course of such mediation. If any such dispute is not resolved by mediation, the Parties agree that such dispute shall be submitted to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, or any federal court of competent jurisdiction sitting in the State of Delaware, and the Parties hereby waive any and all defenses and/or objections to jurisdiction and venue in such courts. Each of the parties irrevocably agrees to waive any and all rights they may have to trial by jury in any action, proceeding or claim of any nature relating to this Release, or the enforcement of this Release, and acknowledge that such waiver is knowing and voluntary. In the event of any dispute regarding the interpretation or enforcement, or otherwise arising out of this Release, the prevailing party shall be entitled to an award of its reasonable attorney's fees and costs, including through appeal.

 

13. Revocation Period. Executive has the right to revoke this Release within seven (7) calendar days after Executive’s execution of this Release by giving notice in writing of such revocation to: [●]. No revocation shall be timely or effective unless actually received by Company within the seven day revocation period. In the event that Executive revokes this Release prior to the Effective Date, this Release, and the promises and obligations contained therein, shall automatically and retroactively be deemed null and void and Company's and Executive’s rights, remedies, and obligations to each other shall be reinstated as if this Release had never been executed or delivered including, without limitation, that Company will not be obligated to provide Executive the consideration referenced in Section 1 of this Release.

 

14. Effective Date. This Release shall become effective on the eighth (8^th) calendar day following execution by Executive, where not timely revoked.

 

[SIGNATURES ON FOLLOWING PAGE]

 

 

Exhibit B to Executive Employment Agreement

 

IN WITNESS WHEREOF, the parties freely and voluntarily execute this Release as follows:

 

RumbleOn, Inc.		Executive
By:
Title:

 

 

 

Exhibit 10.4

 

EXECUTIVE EMPLOYMENT AGREEMENT

(RUMBLEON, INC.)

 

This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) dated as of August 31, 2021 is entered by and between RumbleOn, Inc., an Nevada corporation (the “Company”), and Bill Coulter (“Executive”) and will be effective as of the Closing of the Transaction (each as defined below) (the “Effective Date”). Each of the Company and Executive are a “Party,” and collectively, they are the “Parties.”

 

WHEREAS, RumbleOn, Inc., along with its wholly owned subsidiaries, has entered into an Agreement and Plan of Merger and Equity Purchase Agreement, as of the date hereof (the “Merger Agreement” and the transactions contemplated thereby the “Transaction”), by which the Company (together with its subsidiaries, including its Acquired Companies through the Transaction, the “Companies”) shall be the surviving corporation as of the closing of the Transaction (the “Closing”);

 

WHEREAS, the Company’s willingness to enter into the Merger Agreement and close the Transaction is conditioned on Executive’s agreement to the terms set forth herein;

 

WHEREAS, as part of the Transaction, Executive, Bill Coulter, shall receive valuable consideration in exchange for the sale and transfer of Executive’s equity in the Acquired Companies to the Company; and

 

WHEREAS, the Company wishes to employ, and/or continue to employ Executive as of the Effective Date; and

 

WHEREAS, Executive wishes to be employed and/or continue to be employed by the Company as of the Effective Date.

 

NOW THEREFORE, in consideration of the mutual covenants and mutual benefits set forth herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Company and Executive agree as follows:

 

1. Representations and Warranties. Other than the restrictive covenants of the Merger Agreement, Executive represents and warrants to the Company that Executive is not bound by any restrictive covenants or other obligations or commitments of any kind that would in any way prevent, restrict, hinder or interfere with Executive’s acceptance of employment under the terms and conditions set forth herein or the performance of all duties and services hereunder to the fullest extent of Executive’s ability and knowledge. Executive understands and acknowledges that Executive is not expected or permitted to use or disclose confidential information belonging to any prior employer in the course of performing Executive’s duties for the Company.

 

2. Term of Employment; Contingencies. As of the Effective Date, the Company will employ Executive and Executive accepts employment by the Company on the terms and conditions herein contained for a period (the “Employment Period”) provided in Section 5. This Agreement is contingent upon the successful closing of the Transaction. In the event that the Transaction does not close, then this Agreement shall be null and void, and the Parties shall have no further obligations hereunder.

 

 

3. Duties and Functions.

 

(a) Executive shall be employed as Executive Vice Chairman of the Company and shall oversee, direct and manage the operations of the Company and engage in other responsibilities inherent within the position of Executive Vice Chairman. Executive shall report to the Board of Directors (the “Board”) or such persons as the Board may reasonably determine.

 

(b) Executive agrees to undertake the duties and responsibilities inherent in the position of Executive Vice Chairman, including the responsibilities commensurate with, and customary for, that position, and which may encompass different or additional duties as may, from time to time, reasonably be assigned by the Board or such persons as the Board may reasonably determine. Executive agrees to abide by the Company's written policies and procedures in the administration of Executive's duties.

 

(c) During the Employment Period, Executive will devote reasonable time and efforts to the business of the Company with the understanding that Executive will continue to devote time and efforts to Coulter Automotive Group. Other than the work performed for Coulter Automotive Group, Executive will not engage in consulting work or any trade or business for Executive’s own account or for or on behalf of any other person, firm or corporation to the extent such activities materially or substantially conflict or interfere with the performance of Executive’s duties hereunder.

 

(d) It shall not be a violation of this Agreement for Executive to: serve on civic or charitable boards or committees; deliver lectures, fulfill speaking engagements or teach at educational institutions; or engage in personal investment activities, so long as such activities do not materially or substantially interfere with the performance of Executive’s duties hereunder.

 

4. Compensation.

 

(a) Base Salary: As compensation for Executive’s services hereunder, the Company agrees to pay Executive a base salary at an annual rate of not less than $500,000, payable in accordance with the Company’s normal payroll schedule, but no less frequently than monthly. The Company may withhold from any amounts payable under this Agreement such federal, state or local taxes as shall be required to be withheld pursuant to any applicable law or regulation (the "Base Salary"). Executive’s Base Salary shall be subject to review from time to time, based on corporate policy and contributions made by Executive to the enterprise, and may be increased, but not decreased, during the Employment Period, as specified in the Incentive Program attached as Exhibit A to this Agreement and expressly incorporated herein.

 

(b) Annual Cash Bonus: Beginning with calendar year 2021, Executive shall be eligible to receive an annual cash bonus award with a payout range of 0% - 125% of Executive's Base Salary (the "Annual Bonus"), upon achievement of the performance metrics adopted by the Board or the Compensation Committee in connection with the Short-Term Annual Cash Bonus Program, as described in the Incentive Program (“Performance Metrics”). Executive shall be entitled to payment of the Annual Bonus for any calendar year that the Performance Metrics are met during the Employment Period. The Company agrees that it shall not eliminate the Annual Cash Bonus, or Executive's eligibility thereunder, for the duration of the Employment Period.

 

 

(c) Short-Term Stock Incentive Plan. For 2021, Executive shall receive a grant of Restricted Stock Units ("Initial RSUs") in connection with the Merger Agreement. Thereafter, during the Employment Period, Executive shall be eligible to receive additional Restricted Stock Units (“RSUs”) during the first week of January of each year, in accordance with the terms and conditions set forth in the Company's Short-Term Stock Incentive Plan ("STIP"). Pursuant to that STIP and as specified in the Incentive Program attached as Exhibit A to this Agreement, the RSUs shall vest over a three-year period as follows: (i) 33.3% vesting in full on the first anniversary of the date of issue, (ii) an additional 33.3% vesting quarterly on a pro rata basis during the subsequent twelve-month period, and (iii) the final 33.4% vesting quarterly on a pro rata basis during the third twelve-month period. The Company agrees that it shall not eliminate the Short-Term Stock Incentive Plan, or Executive's eligibility thereunder, for the duration of the Employment Period.

 

(d) Long-Term Annual Stock Incentive Plan. During the Employment Period, Executive shall further be entitled to participate in the Company's Long-Term Annual Stock Incentive Plan ("LTIP"), based upon the terms and conditions set forth therein, as described in the Incentive Program attached as Exhibit A to this Agreement. The Company agrees that it shall not eliminate the Long-Term Stock Incentive Plan, or Executive's eligibility thereunder, for the duration of the Employment Period.

 

(e) Other Expenses. In addition to the compensation and benefits provided for above, the Company agrees to pay or to reimburse Executive during Executive’s employment for all reasonable, ordinary and necessary, properly documented, business expenses incurred in the performance of Executive’s services hereunder in accordance with Company policy in effect from time to time. Such expenses shall include but not be limited to reimbursement for all travel related expenses which are substantiated to be integrally and directly related to the performance of Executive's duties while employed by the Company. With regard to such travel expenses, Executive shall have the sole discretion as to the form and class of travel chosen.

 

(f) Paid Time Off. Executive shall be allowed four (4) weeks of paid time off per calendar year, to be taken at times selected by Executive, as well as paid holidays, sick leave, and personal days in accordance with the Company's policies (collectively, “PTO”). Executive's accrued, unused PTO shall carry over from year to year and be paid out to Executive at time of separation of employment regardless of the reason.

 

(g) Fringe Benefits. In addition to Executive’s compensation provided by the foregoing, Executive shall be entitled to the benefits available generally to Company's senior executive level employees pursuant to the Company's programs which may now or, shall hereafter be in effect, or otherwise established by the Company, subject to the applicable terms and conditions of the benefit plans in effect at that time. Nothing herein shall affect the Company’s ability to modify, alter, terminate or otherwise change any benefit plan it has in effect at any given time, to the extent permitted by law. Notwithstanding, the Company agrees that it shall maintain and not modify, alter or terminate the Annual Cash Bonus, Short-Term Annual Stock Incentive Plan, Long-Term Annual Stock Incentive Plan and/or Executive's eligibility or vested benefits thereunder for the duration of the Employment Period, as such programs, plans and benefits are described in the Incentive Program attached as Exhibit A to this Agreement, subject to applicable laws and regulations.

 

 

5. Employment Period.

 

(a) Employment Period. The Employment Period shall commence on the Effective Date and shall continue until the third anniversary of the Effective Date (the “Initial Term”). The term of the Employment Period shall be automatically extended upon the same terms and conditions, for one additional month on the last day of every month following the Effective Date (a “Renewal Date") such that it has a continuous “rolling” three-year period, unless Executive or Company provides written notice to the other party, at least fifteen (15) days prior to the applicable Renewal Date, of its intention not to extend the term of this Agreement. Thus, at any point of non-renewal, the remaining term would be three (3) years. The period during which Executive is employed hereunder shall be considered the Employment Period.

 

(b) Termination by Executive without Good Reason. Notwithstanding the provisions of Section 5(a), Executive may terminate Executive's employment with Company and this Agreement at any time by giving the Company written notice at least thirty (30) days prior to the effective date of termination (the "Termination Date"). The Company, at its election, may require Executive to continue to perform Executive’s duties hereunder for the full thirty (30) day notice period, or may choose at any time during such 30-day notice period to accelerate the effective date of Executive’s resignation and end the employment relationship immediately (which for purposes of clarity shall not constitute a termination by the Company without Cause). If Executive chooses to terminate the employment relationship without Good Reason (as defined below), Executive shall only be entitled to receive upon such termination: (i) payment of Base Salary through the Termination Date, including through the notice period where termination has been accelerated, (ii) payment of any Annual Bonus for the prior calendar year, if not already paid; (iii) payment for any accrued but unused PTO, (iv) any right to continued benefits required by law (the foregoing (i) through (iv) shall be referred to herein as the “Accrued Obligations”). Payment of all Accrued Obligations owed herein shall be paid to Executive in lump sum, within seven (7) calendar days of the Termination Date or, if the Company accelerates the effective date of Executive’s resignation, then such Accrued Obligations will be paid to Executive on such accelerated effective date.

 

(c) Termination by Executive for Good Reason. Executive may terminate Executive's employment with Company and this Agreement for Good Reason, which shall include: (A) a material reduction or diminution of Executive's authorities, duties, responsibilities or Base Salary, which is subject to the provisions of Section 4(a); (B) relocation of Executive's worksite to a location more than fifty (50) miles from Executive's then-current location; or (C) a material breach by Company of this Agreement where Executive has provided Company thirty (30) days' written notice and given the Company thirty (30) days' opportunity to cure, and the Company has failed to cure such material breach during that notice period; and further provided Executive terminates employment within ninety (90) days following the Company's failure to cure such material breach. A termination by Executive for Good Reason pursuant to this provision shall entitle Executive to payment of the Accrued Obligations, as well as Termination Compensation (as defined below) as if Executive had been terminated by the Company without Cause under Section (e)(1).

 

 

(d) Termination by Company for Cause.

 

(i) Notwithstanding the provisions of Section 5(a), at any time during the Employment Period, the Company may terminate Executive’s employment and this Agreement for Cause (defined below), with such termination taking effect upon written notice of the termination for Cause being provided to Executive. If Executive’s employment is terminated for Cause, Executive will not be entitled to and shall not receive any compensation or benefits of any type following the effective date of termination, other than the Accrued Obligations.

 

(ii) “Cause” shall be defined as termination where: (i) the Executive is convicted of fraud, theft or embezzlement against the Company or any subsidiary or affiliate thereof; (ii) the Executive is convicted of a felony or a crime involving moral turpitude; (iii) the Executive substantially breaches any material term of this Agreement and fails to cure such breach within 30 days after the receipt of written notice of such breach from the Company; or (iv) the Executive engages in gross negligence or willful misconduct that causes harm to the business and operations of the Company or a subsidiary or affiliate thereof.

 

(e) Termination by Company Without Cause. The Company may terminate Executive without Cause immediately by giving Executive written notice of such termination. Subject to the conditions set forth in Section 5(e)(ii), if Executive’s employment is terminated by the Company without Cause, in addition to the Accrued Obligations, Executive shall receive the following:

 

(i) a severance payment equivalent to three times (3x) the sum of Executive's Base Salary and the greater of either the (i) highest Annual Bonus the Executive received during the three calendar years prior to the Termination Date or (ii) the Executive’s target Annual Bonus in effect for the year in which termination occurs. Such severance payment shall be paid in accordance with the Company's regular payroll cycle, with the first payment commencing upon the pay date immediately following the effective date of the Release, if not timely revoked, as described in this Section 5(e), and on a continuing basis until the full amount has been paid;

 

(ii) if Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall provide for the payment of the Executive’s monthly COBRA payment for Executive and any of the Executive’s dependents that were participating in in such plan immediately prior to Executive’s termination (the “COBRA Subsidy”). The Company shall provide the COBRA Subsidy until the earliest of: (i) the twenty-four (24) month anniversary of the Termination Date, or (ii) the date Executive is no longer eligible to receive COBRA continuation coverage. If the Company cannot provide the COBRA Subsidy without violating applicable law or is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health insurance plans, then the Company shall pay the Executive an equivalent monthly cash payment such that Executive receives, on an after-tax basis, the same amount reimbursement for COBRA benefits for a period of eighteen (18) months; and

 

(iii) automatic and immediate vesting of any and all equity benefits including, without limitation, the Initial RSUs, and RSUs under the STIP and the LTIP (all within seven (7) calendar days of the effective date of the Release, as described in this Section 5(e)).

 

 

The above severance payments, COBRA Subsidy and vesting of all equity benefits under Sections 3(e)(i) through (iii) are collectively referred to as the “Termination Compensation”). Executive shall not be entitled to the Termination Compensation unless Executive executes a separation and release agreement which shall include a full waiver and general release of claims in favor of the Company, in substantially the form and substance attached hereto as Exhibit B (the “Release”), and such Release becoming effective, if not timely revoked under the terms thereof, within fifty-two (52) days following the Termination Date (the “Release Execution Period”). Such release shall not affect Executive’s right to a defense by legal counsel and indemnification, if any, for actions taken within the scope of Executive’s employment. If the Release Execution Period straddles two taxable years of Executive, then the Company shall pay the Termination Compensation starting in the second of such taxable years (with any missed severance payments being paid to the Executive on the first payroll date occurring in the second calendar year). The Parties hereto acknowledge that the Termination Compensation to be provided under Section 5(e)(i) is to be provided in consideration for the above-specified Release.

 

(f) Termination for Executive’s Permanent Disability. If the Executive becomes physically or mentally disabled as determined by a qualified, licensed medical physician mutually selected by the Company and Executive and such disability causes Executive to become unable for a period of more than five (5) consecutive months or for shorter periods aggregating at least five (5) months during any twelve (12) month period to perform the Executive’s duties hereunder on a substantially full-time basis, then the Company will deliver a written notice to Executive stating with specificity the reason for termination and the Executive’s employment will terminate within 30 days of the date of such notice, and this shall be considered a "disability" under this Agreement. Such termination shall not affect the Executive’s benefits under the Company’s disability insurance program, if any, then in effect. In the event Executive is terminated pursuant to this Section 5(f), Company shall pay to Executive all Accrued Obligations and Termination Compensation as if Executive had been terminated by the Company without Cause, subject to reduction by the amount of any disability insurance proceeds paid to or on behalf of Executive.

 

(g) Termination Due to Executive’s Death. This Agreement and Executive's employment hereunder will terminate immediately upon Executive’s death and the Company shall not have any further liability or obligation to Executive, Executive’s executors, heirs, assigns or any other person claiming under or through Executive’s estate, except that Executive’s estate shall receive payment for all Accrued Obligations and Termination Compensation as if Executive had been terminated by the Company without Cause.

 

(h) Termination Upon Change in Control. In the event of a “Change of Control” (defined herein) Executive may terminate Executive's employment and this Agreement within ninety (90) days of the effective date of the Change of Control upon thirty (30) days written notice. "Change in Control" shall mean (a) any sale, lease, exchange or other transfer (in one transaction or a series of transactions) of all or substantially all of the assets of the Company; or (b) any consolidation or merger or other business combination of the Company with any other entity where the shareholders of the Company, immediately prior to the consolidation or merger or other business combination would not, immediately after the consolidation or merger or other business combination, beneficially own, directly or indirectly, shares representing fifty percent (50%) of the combined voting power of all of the outstanding securities of the entity issuing cash or securities in the consolidation or merger or other business combination (or its ultimate parent corporation, if any). Upon a Change in Control, 100% of all unvested stock options and/or restricted shares held by Executive shall immediately vest (the "Accelerated Equity Vesting"). Further, upon a Change in Control, Executive shall be entitled to the Accrued Obligations and Termination Compensation as if Executive was terminated without Cause.

 

 

(i) Expiration of the Agreement. If the Agreement expires at the end of the Initial Term or any Renewal Term after proper advance notice by either Party of its/his intent not to renew, the Agreement shall expire and Executive shall receive only the Accrued Obligations as of the date of expiration.

 

(j) Continuing Obligations. The obligations imposed on Executive with respect to non-competition, non-solicitation, confidentiality, non-disclosure and assignment of rights to inventions or developments in this Agreement shall continue, notwithstanding the termination of the employment relationship between the Parties, as set forth in Section 7.

 

6. Company Property. All correspondence, records, documents, software, promotional materials, and other Company property, including all copies, which come into Executive’s possession by, through or in the course of Executive’s employment, regardless of the source and whether created by Executive, are the sole and exclusive property of the Company, and immediately upon the termination of Executive’s employment, or at any time the Company shall request, Executive shall return to the Company all such property of the Companies, without retaining any copies, summaries or excerpts of any kind or in any format whatsoever. Executive shall not destroy any of the Companies' property, such as by deleting electronic mail or other files, other than in the normal course of Executive’s employment. Executive further agrees that should Executive discover any Company property or Confidential Information in Executive’s possession after the return of such property has been requested, Executive agrees to return it promptly to Company without retaining copies, summaries or excerpts of any kind or in any format whatsoever.

 

7. Restrictive Covenants. Executive agrees and acknowledges that, in connection with Executive’s employment with the Company, Executive will be provided with access to and become familiar with confidential and proprietary information, trade secrets, and substantial relationships belonging to the Companies. Accordingly, in consideration of Executive’s employment with the Company pursuant to this Agreement, any payments made to the Executive as set forth in Section 5 (including the Accelerated Equity Vesting), and other good and valuable consideration, the receipt of which is hereby acknowledged, Executive agrees to the following restrictive covenants:

 

(a) Non-Competition. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s own behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) engage directly or indirectly in the Restricted Business anywhere in the Restricted Territory; or (b) directly or indirectly be or become an officer, director, stockholder, owner, affiliate, partner, member, investor, joint venture, employee, agent, representative, consultant, lender, advisor, manager of, for or to, or otherwise be or become associated with or acquire or hold (of record, beneficially or otherwise) any direct or indirect interest in, any individual or entity that engages directly or indirectly in the Restricted Business anywhere in the Restricted Territory; provided, however, that Executive may, without violating this Section 7(a), own, as a passive investment, shares of capital stock of a publicly-held corporation that engages in the Restricted Business if (i) such shares are actively traded on an established national securities market in the United States or any other foreign securities exchange, (ii) the number of shares of such corporation’s capital stock that are owned beneficially (directly or indirectly) by the Executive represents less than one percent (1%) of the total number of shares of such corporation’s capital stock outstanding, and (iii) Executive is not associated directly or indirectly with such corporation or with any affiliate of such corporation.

 

 

(b) Non-Solicitation of Customers and Other Business Relations. Executive agrees that during the Restricted Period, Executive shall not, either on Executive's behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) solicit, induce or attempt to solicit or induce any business, enterprise, or individual who, during the preceding two-year period, has a business relationship with the Companies (including any customer, licensee, supplier, manufacturer or vendor) (i) to cease doing business with the Companies, or (ii) to diminish or materially alter in a manner harmful to the Companies, such business, enterprise, or individual’s relationship with the Companies; or (iii) to purchase, contract for or receive any products or services from any such business relationship of Company (other than on behalf of the Companies) that engages in the Restricted Business anywhere within the Restricted Territory; provided, however, that nothing contained in this Section 7(b) shall prevent Executive from contracting with a third party who has or had a business relationship with Companies if such contracting does not adversely affect such third party’s business relationship with the Companies.

 

(c) Non-Hiring or Solicitation of Employees and Contractors. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s own behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) directly or indirectly hire or solicit for hire any employee, independent contractor, or consultant or any person who was an employee, independent contractor, or consultant of the Companies within the preceding twelve (12) months, or (b) directly or indirectly encourage, induce, attempt to induce, solicit or attempt to solicit (on Executive’s own behalf or on behalf of any other business, enterprise, or individual) any employee, independent contractor, or consultant to leave or curtail his or her employment or engagement with the Companies; provided, however, that notwithstanding the foregoing, this Section 7(c) shall not prevent Executive from undertaking general solicitations of employment not specifically targeted at employees, independent contractors, or consultants of the Companies (so long as Executive does not, directly or indirectly, specifically solicit for hire any such employee, independent contractor, or consultant).

 

(d) Definitions. For purposes of this Section 7:

 

(i) “Restricted Business” shall mean the operation of a technology-based motor vehicle dealer e-commerce platform and/or any other internet-based platform that allows dealers, consumers, and any other business, enterprise, or individual to buy, sell, trade, finance, and/or transport pre-owned snowmobiles, watercraft, motorcycles, ATVs, UTVs, scooters, side-by-sides, sport bikes, cruisers, or other modes of transportation, as well as the sale, leasing, rental, financing, servicing (including supply of parts) and ancillary activities relating to new and used motorcycles, ATVs, UTVs, scooters, side-by-sides, sport bikes, two- and three-wheeled cruisers, powered watercraft, and any other business engaged in by Companies during Executive's employment therewith; provided that the ownership and operation of a business in retail (but not wholesale) automobile sales or leasing (NOT including motorcycles, or any other powersport vehicle) shall not be deemed a Restricted Business.

 

 

(ii) "Restricted Period" shall mean the period while Executive is in the employ of the Company and/or any of its affiliates and for a three (3) year period following the end of such employment for any reason, provided, however, that in the event of any breach by Executive of this Section 7, the Restricted Period shall be automatically extended by a number of days equal to the total number of days in the period from the date on which such breach shall have first occurred through the date as of which such breach shall have been fully cured.

 

(iii) “Restricted Territory” means Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, and each territory of the United States, including Washington, D.C.

 

(e) Reasonableness of Restrictive Covenants. The Parties agree that the relevant public policy aspects of post-employment restrictive covenants have been discussed, and that every effort has been made to limit the restrictions placed upon Executive to those that are reasonable and necessary to protect the Companies' legitimate interests. Executive acknowledges that, based upon Executive’s education, experience, and training, the restrictions set forth in this Section 7 will not prevent Executive from earning a livelihood and supporting himself and Executive’s family during the relevant time period. Executive further acknowledges that, because the Companies market their products and services throughout the Restricted Territory, a more narrow geographic limitation on the restrictive covenants set forth above would not adequately protect the Companies' legitimate business interests.

 

(f) Modification. The Parties agree that if any restriction set forth in this Section 7 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or geographic area as to which it may be enforceable.

 

(g) Independence of Obligations. The Parties agree that the restrictive covenants set forth in this Section 7 are not intended to, and shall not, supersede any restrictive covenants contained in any other agreement (including, but not limited to the Merger Agreement or other agreement executed in connection with the Transaction, or if applicable, any stock or stock-linked award agreement, or otherwise), and that the provisions of Section 7 (along with the Confidentiality provisions of Section 8 below) shall be construed as separate and distinct obligations of Executive which shall expressly survive the termination of Executive's employment with the Company.

 

(h) Injunctive Relief. The Parties agree that the restrictions contained in this Section 7 are necessary for the protection of the business and goodwill of the Companies and are considered by Executive to be reasonable for such purposes. Executive agrees that any material breach of Section 7 will result in irreparable harm and damage to the Companies that cannot be adequately compensated by a monetary award. Accordingly, it is expressly agreed that in addition to all other remedies available at law or in equity (including, without limitation, money damages from Executive), the Company and/or such affiliate shall be entitled to a temporary restraining order, preliminary injunction or such other form of injunctive or equitable relief as may be used by any court of competent jurisdiction to restrain or enjoin Executive from breaching any such covenant or provision or to specifically enforce the provisions hereof, without the need to post any bond or other security.

 

 

8. Protection of Confidential Information.

 

(a) Executive agrees that all information, whether or not in writing, relating to the business, technical or financial affairs of the Companies and that is generally understood in the industry as being confidential and/or proprietary information, is the exclusive property of the Companies. Executive agrees to hold in a fiduciary capacity for the sole benefit of the Companies all secret, confidential and/or proprietary information, knowledge, and data, including trade secrets, relating to the Companies obtained during Executive’s employment with the Company or any of its predecessors or affiliates, including but not limited to any trade secrets, confidential or secret designs, website technologies, content, processes, formulae, plans, manuals, devices, machines, know-how, methods, compositions, ideas, improvements, financial and marketing information, costs, pricing, sales, sales volume, salaries, methods and proposals, customer and prospective customer lists, customer identities, customer volume, or customer contact information, identity of key personnel in the employ of customers and prospective customers, amount or kind of customer’s purchases from the Companies, manufacturer lists, manufacturer identities, manufacturer volume, or manufacturer contact information, identity of key personnel in the employ of manufacturers, amount or kind of the Companies' purchases from manufacturers, system documentation, hardware, engineering and configuration information, computer programs, source and object codes (whether or not patented, patentable, copyrighted or copyrightable), related software development information, inventions or other confidential or proprietary information belonging to the Companies or directly or indirectly relating to the Companies' business and affairs (“Confidential Information”). Confidential Information shall not include information (i) that has entered the public domain through no fault of Executive, (ii) rightfully known by the receiving person without obligation of confidentiality to any third party prior to receipt of same from the disclosing person, (iii) independently developed by the receiving person without using or referring to any Confidential Information of the Company, and (iv) generally made available to the public by the disclosing person without obligation of confidentiality. Executive agrees that Executive will not at any time, either during the Employment Period or the Confidentiality Period (as defined below), disclose to anyone any Confidential Information, or utilize such Confidential Information for Executive’s own benefit, or for the benefit of third parties without written approval by an officer of the Company. For purposes of this section, the “Confidentiality Period” means for the period of three (3) years after the Termination Date. Executive further agrees that all memoranda, notes, records, data, schematics, sketches, computer programs, prototypes, or written, photographic, magnetic or other documents or tangible objects compiled by Executive or made available to Executive during the Employment Period concerning the business of the Companies and/or their respective clients, including any copies of such materials, shall be the property of the Companies and shall be delivered to the Company on the termination of Executive’s employment, or at any other time upon request of the Company.

 

 

(b) In the event Executive is questioned by anyone not employed by the Company or by an employee of or a consultant to the Company not authorized to receive such information, in regard to any Confidential Information or any other secret or confidential work of the Companies, or concerning any fact or circumstance relating thereto, or in the event that Executive becomes aware of the unauthorized use of Confidential Information by any party, whether competitive with the Company or not, Executive will promptly notify an officer of the Company.

 

(c) Court-Ordered Disclosure. In the event that, at any time during Executive’s employment with the Company or at any time thereafter, Executive receives a request to disclose any Confidential Information under the terms of a subpoena or order issued by a court or by a governmental body, Executive agrees to notify the Company immediately of the existence, terms, and circumstances surrounding such request, to consult with the Company on the advisability of taking legally available steps to resist or narrow such request; and, if disclosure of such Confidential Information is required to prevent Executive from being held in contempt or subject to other penalty, to furnish only such portion of the Confidential Information as, in the written opinion of counsel satisfactory to the Company, Executive is legally compelled to disclose, and to exercise Executive’s reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.

 

(d) Non-Interference with Governmental Agency Rights. The provisions of this Agreement and of any other agreement between Executive and the Company regarding confidentiality and non-disclosure are not intended to interfere with, or waive, any right or obligation (if any) to file a charge, cooperate, testify, report, or participate in an investigation with any appropriate federal, state or local governmental agency, including the Securities and Exchange Commission ("SEC"), the Equal Employment Opportunity Commission ("EEOC"), the Occupational Safety and Health Administration ("OSHA"), the National Labor Relations Board ("NLRB"), or any other federal, state or local government agency charged with enforcement of any law, rule, or regulation applicable to Company's business ("Governmental Agency"); including the ability to communicate with such agency; the reporting of possible violations of any law, rule or regulation; making other disclosures that are protected under whistleblower provisions of any law, rule or regulation; or the receiving of an award for information provided to any Governmental Agency.

 

(e) Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, Executive acknowledges that Executive shall not have criminal or civil liability under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the trade secret to Executive’s attorney and may use the trade secret information in the court proceeding, if Executive (X) files any document containing the trade secret under seal and (Y) does not disclose the trade secret, except pursuant to court order.

 

 

9. Intellectual Property.

 

(a) Disclosure of Inventions. Executive will promptly disclose in confidence to the Company all inventions, improvements, processes, products, designs, original works of authorship, formulas, processes, compositions of matter, computer software programs, Internet products and services, e-commerce products and services, e-entertainment products and services, databases, mask works, trade secrets, product improvements, product ideas, new products, discoveries, methods, software, uniform resource locators or proposed uniform resource locators (“URLs”), domain names or proposed domain names, any trade names, trademarks or slogans, which may or may not be subject to or able to be patented, copyrighted, registered, or otherwise protected by law (the “Inventions”) that Executive makes, conceives or first reduces to practice or creates, either alone or jointly with others, during the period of Executive’s employment with the Company, in the course of Executive’s employment, and whether or not such Inventions are patentable, copyrightable or able to be protected as trade secrets, or otherwise able to be registered or protected by law.

 

(b) Assignment of Company Inventions; Work for Hire. Executive agrees that all Inventions that (i) are developed using equipment, supplies, facilities or trade secrets of the Companies, (ii) result from work performed by Executive for the Companies, or (iii) relate to the Companies' business or current or anticipated research and development (the “Company Inventions”), will be the sole and exclusive property of the Company and are hereby irrevocably assigned by Executive to the Company from the moment of their creation and fixation in tangible media. Executive further acknowledges and agrees that any copyrightable works prepared by Executive within the course of Executive’s employment are “works for hire” under the Copyright Act and that the Company will be considered the author and owner of such copyrightable works.

 

(c) Assignment of Other Rights. In addition to the foregoing assignment of Company Inventions to the Company, Executive hereby irrevocably transfers and assigns to the Company: (i) all worldwide patents, patent applications, copyrights, mask works, trade secrets and other intellectual property rights in any Company Invention; and (ii) any and all “Moral Rights” (as defined below) that Executive may have in or with respect to any Company Invention. Executive also hereby forever waives and agrees never to assert any and all Moral Rights Executive may have in or with respect to any Company Invention, even after termination of Executive’s work on behalf of the Companies. “Moral Rights” means any rights to claim authorship of an Company Invention, to object to or prevent the modification of any Company Invention, or to withdraw from circulation or control the publication or distribution of any Company Invention, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”

 

(d) Assistance. Executive agrees to reasonably cooperate with the Company, at the Company’s sole cost and expense, to obtain and enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company Inventions in any and all countries. At the Company’s reasonably request, Executive will execute documents necessary for use in obtaining or enforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. Executive’s obligations under this section will continue for a period of twelve (12) months beyond the termination of Executive’s employment with the Company, provided that the Company will compensate Executive at a reasonable rate after such termination for time or expenses actually spent by Executive at the Company’s request on such assistance. Executive appoints the Secretary of the Company as Executive’s attorney-in-fact to execute documents on Executive’s behalf sole for the limited purpose set forth in this Section 9(d).

 

 

10. Publicity. Neither Party shall issue, without consent of the other Party, any press release or make any public announcement with respect to this Agreement or the employment relationship between them, or the ending of such relationship.

 

11. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their heirs, personal representatives, successors and assigns. Executive acknowledges and agrees that the Company may, in its sole discretion, assign this Agreement (i) to an affiliate of the Company at any time, or (ii) in the event the Company is acquired, is a non-surviving party in a merger, or transfers substantially all of its assets, to the transferee or surviving company, in each case without being required to obtain Executive’s consent. The Parties understand that the obligations of Executive are personal and may not be assigned by Executive.

 

12. Entire Agreement. This Agreement and the Exhibits attached hereto contains the entire understanding of Executive and the Company with respect to employment of Executive and supersedes any and all prior understandings, written or oral, regarding the terms or conditions of Executive's employment with the Company. Notwithstanding the foregoing, except for the provisions of the Incentive Program attached hereto as Exhibit A, the provisions of this Agreement are not intended to, and shall not, supersede any restrictive covenants contained in any other agreements (including, but not limited to, any obligations related to non-competition, non-solicitation, confidentiality, non-disparagement, and/or assignment of inventions in an agreement entered into between Executive and the Company or any related or affiliated entity), and the provisions of this Agreement and of any other such agreements shall be construed as separate and distinct obligations of Executive. This Agreement may not be amended, waived, discharged or terminated orally, but only by an instrument in writing, specifically identified as an amendment to this Agreement, and signed by both Parties. By entering into this Agreement, Executive certifies and acknowledges that Executive has carefully read all of the provisions of this Agreement and that Executive voluntarily and knowingly enters into this Agreement.

 

13. Severability; Modification. If any portion, provision, section or subsection of this Agreement is determined to be unreasonable or unenforceable, for any reason whatsoever, the parties agree that such portion, provision, section or subsection may be severed, modified or narrowed, either by a court or the Company, so as to provide the maximum legally enforceable protection of the Companies' legitimate business interests, without negating or impairing any other restrictions or agreements set forth herein. If any portion, provision, section or subsection of this Agreement is held to be invalid, illegal, or unenforceable, it shall not affect the other provisions of this Agreement, which shall remain in effect. This Agreement shall be construed in all respects as if such invalid, illegal or unenforceable provision was omitted.

 

 

14. Tax Consequences. Except as otherwise specifically provided in this Agreement, the Company will have no obligation to any person entitled to the benefits of this Agreement with respect to any tax obligation any such person incurs as a result of or attributable to this Agreement, including all supplemental agreements and employee benefits plans incorporated by reference therein, or arising from any payments made or to be made under this Agreement or thereunder.

 

15. Golden Parachute Excise Tax.

 

(a) Parachute Payments. If any payment or benefit Executive would receive pursuant to this Agreement or pursuant to any other agreement with the Company following a change in the ownership or effective control of the Company or change in the ownership of a substantial portion of the assets of the Company (which change, as further defined in Section 280G of the Code and regulations promulgated thereunder (“Section 280G”), is referred to herein as a “Change in Control” from the Company or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G, and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: (1) cash payments, in the following order: (a) first, severance payments under this Agreement, (b) second, severance payments under any other agreement with the Company and (c) third, any other cash payments under any of the foregoing agreements; (2) cancellation of the acceleration of vesting of stock options, restricted stock, restricted stock units or any other awards that vest based on attainment of performance measures; (3) cancellation of the acceleration of vesting of stock options, restricted stock and restricted stock units or any other awards that vest only based on Executive’s continued service to the Company, taking the last ones scheduled to vest (absent the acceleration) first, and (4) other non-cash forms of benefits.

 

(b) Calculations. The foregoing calculations will be performed at the expense of the Company by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company. The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within thirty (30) calendar days after the Change in Control, the date of termination, if applicable, and any such other time or times as may be reasonably requested by the Company or Executive. If the Accounting Firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment.  Any good faith determinations of the Accounting Firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

 

 

16. Section 409A.

 

(a) This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and Treasury guidance promulgated thereunder (“Section 409A of the Code”). If the Company determines in good faith that any provision of this Agreement would cause Executive to incur an additional tax, penalty, or interest under Section 409A of the Code, the Company and Executive shall use reasonable efforts to reform such provision, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code or causing the imposition of such additional tax, penalty, or interest under Section 409A of the Code. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to Executive under this Agreement.

 

(b) For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event may Executive, directly or indirectly, designate the calendar year of payment.

 

(c) With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, Executive, as specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

 

(d) “Termination of employment,” “resignation,” or words of similar import, as used in this Agreement means, for purposes of any payments under this Agreement that are payments of deferred compensation subject to Section 409A of the Code, Executive’s “separation from service” as defined in Section 409A of the Code.

 

(e) To the extent that Section 409A of the Code would cause an adverse tax consequence to the Executive upon accelerating any payment of Termination Compensation pursuant to Section 5(h) upon a Change in Control (“Section 409A Payments”), a Change in Control shall not be deemed to occur with respect to such Section 409A Payments unless the Change in Control qualifies as a “Change in the Ownership or Effective Control of a Corporation or in the Ownership of a Substantial Portion of the Assets of a Corporation” under Treasury Department Regulation 1.409A-3(i)(5), as revised from time to time in either subsequent regulations or other guidance and such Section 409A Payments shall be made at the time such payments would have otherwise been made absent the Change in Control.

 

(f) Neither the Company nor Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A.

 

 

(g) If a payment obligation under this Agreement arises on account of Executive’s separation from service while Executive is a “specified employee” (as defined under Section 409A of the Code and determined in good faith by the Company), any payment of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be paid within 15 days after the end of the six-month period beginning on the date of such separation from service or, if earlier, within 15 days after the appointment of the personal representative or executor of Executive’s estate following Executive’s death.

 

17. Governing Law. The law, including the statutes of limitation, of the State of Delaware shall govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to its or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.

 

18. Notices. Any notice provided for in this Agreement shall be provided in writing. Notices shall be effective from the date of service, if served personally on the Party to whom notice is to be given, or on the second day after mailing, if mailed by first class mail, postage prepaid. Notices shall be properly addressed to the Parties at their respective addresses or to such other address as either Party may later specify by notice to the other.

 

19. Dispute Resolution. The Parties agree that, except as otherwise provided in this Agreement, any controversy, claim or dispute arising out of or relating to this Agreement or the breach thereof, or arising out of or relating to the employment of Executive, or the termination thereof, including any statutory or common law claims under federal, state, or local law, including all laws prohibiting discrimination in the workplace, shall first be submitted to mediation conducted by the Judicial Arbitration and Mediation Service (JAMS). The Parties agree to attempt in good faith to resolve any such dispute in the course of such mediation. If any such dispute is not resolved by mediation, the Parties agree that such dispute shall be submitted to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, or any federal court of competent jurisdiction sitting in the State of Delaware, and the Parties hereby waive any and all defenses and/or objections to jurisdiction and venue in such courts. Notwithstanding anything herein to the contrary, the Parties further acknowledge and agree that, due to the nature of the confidential information, trade secrets, and intellectual property belonging to the Companies to which Executive has or will be given access, and the likelihood of significant harm that the Company would suffer in the event that such information was disclosed to third parties, nothing in this paragraph shall preclude the Company from immediately going to court to seek injunctive relief to prevent Executive from violating the obligations established in Sections 7, 8 or 9 of this Agreement. Each of the parties irrevocably agrees to waive any and all rights they may have to trial by jury in any action, proceeding or claim of any nature relating to this Agreement, or the enforcement of this Agreement, and acknowledge that such waiver is knowing and voluntary. In the event of any dispute regarding the interpretation or enforcement, or otherwise arising out of this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney's fees and costs, including through appeal.

 

 

20. Indemnification. The Company shall indemnify and hold harmless Executive for any liability to any third-party incurred by reason of any act or omission performed by Executive while acting in good faith on behalf of the Company and within the scope of the authority of Executive pursuant to this Agreement and under the rules and policies of the Company, except that Executive must have in good faith believed that such action was in the best interest of the Company and such course of action or inaction must not have constituted gross negligence, fraud, willful misconduct, or breach of a fiduciary duty.

 

21. Miscellaneous.

 

(a) No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.

 

(b) The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.

 

(c) The language in all parts of this Agreement will be construed, in all cases, according to its fair meaning, and not for or against either Party hereto. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party will not be employed in the interpretation of this Agreement.

 

(d) Capitalized terms used in this Agreement have the meanings ascribed to them by definition in this Agreement; or if not expressly defined in this Agreement, to the meanings ascribed in the Merger Agreement.

 

(e) The obligations of Company under this Agreement, including its obligation to pay the compensation provided for in this Agreement, are contingent upon Executive’s performance of Executive’s obligations under this Agreement.

 

(f) This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement.

 

 

IN WITNESS WHEREOF, each of the Parties hereto has caused this Executive Employment Agreement to be duly executed, by its authorized officers or individually, on the Effective Date.

 

	RumbleOn, Inc.
	By:	/s/ Marshall Chesrown
		Name: Marshall Chesrown
		Title:   Chief Executive Officer
	/s/ Bill Coulter
	Bill Coulter

 

 

Exhibit A to Executive Employment Agreement

 

[See Executive Incentive Plan included in definitive proxy statement filed on July 1, 2021.]

 

 

Exhibit B to Executive Employment Agreement

 

Release Agreement

 

This Release Agreement (this “Release”) is executed pursuant to Section 5(e)(iii) of that certain Executive Employment Agreement, dated as of August 31, 2021 (the “Employment Agreement”), between RumbleOn, Inc., a Nevada corporation (the “Company”), and Bill Coulter (“Executive”). All terms capitalized and not defined herein shall have the meaning given in the Employment Agreement. Executive acknowledges that the Termination Compensation under this Release does not, in any way, extend the period of employment or continuous service beyond the last day of employment or confer any other rights or benefits upon Executive other than what may be set forth expressly herein.

 

1. Full and Adequate Consideration. Executive acknowledges and agrees that the Termination Compensation shall constitute full and adequate consideration that Executive would not otherwise be entitled but for the promises and obligations set forth in this Release, including Executive's waiver and general release of claims against Company, cooperation during any transitional period, and adherence to other post-termination obligations. Executive acknowledges that Company has no further obligation to Executive, including to pay any additional amounts of money or benefits, other than as set forth below:

 

(a) Severance Payment. In accordance with and pursuant to Section 5(e)(i) of the Employment Agreement, if Executive is terminated by Company (other than with Cause under Section 5(d), by Executive without Good Reason under Section 5(b), or upon Expiration of the Agreement under Section 5(i)), then in addition to the Accrued Obligations, Executive shall receive a severance payment equivalent to three times (3x) the sum of Executive's Base Salary and the greater of either the (i) highest Annual Bonus the Executive received during the three calendar years prior to the Termination Date or (ii) the Executive’s target Annual Bonus in effect for the year in which termination occurs. Such severance payment shall be paid in accordance with the Company's regular payroll cycle, with the first payment commencing upon the pay date immediately following the effective date of this Release, if not timely revoked under the terms hereof, within fifty-two (52) days following the Termination Date (the “Release Execution Period”). If the Release Execution Period straddles two taxable years of Executive, then the Company shall pay the Termination Compensation starting in the second of such taxable years (with any missed severance payments being paid to Executive on the first payroll date occurring in the second calendar year).

 

(b) COBRA Subsidy. If Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall provide for the payment of the Executive’s monthly COBRA payment for Executive and any of the Executive’s dependents that were participating in in such plan immediately prior to Executive’s termination (the “COBRA Subsidy”). The Company shall provide the COBRA Subsidy until the earliest of: (i) the twenty-four (24) month anniversary of the Termination Date, or (ii) the date Executive is no longer eligible to receive COBRA continuation coverage. If the Company cannot provide the COBRA Subsidy without violating applicable law or is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health insurance plans, then the Company shall pay the Executive an equivalent monthly cash payment such that Executive receives, on an after-tax basis, the same amount reimbursement for COBRA benefits for a period of eighteen (18) months.

 

 

Exhibit B to Executive Employment Agreement

 

(c) Equity Benefits. Executive shall have automatic and immediate vesting of any and all equity benefits including, without limitation, the Initial RSUs, and RSUs under the STIP and the LTIP all (within seven (7) calendar days of the effective date of this Release, as described in Section 5(e) of the Employment Agreement).

 

2. Waiver and Release of Claims.

 

(a) General Release. Executive, for and on behalf of himself and each of his heirs, administrators, executors, personal representatives, beneficiaries, and assigns, to the maximum extent permitted by law, does hereby release and forever discharge the “Company Releasees” hereunder, consisting of RumbleOn, Inc., and each of its past, present and future parents, subsidiaries, divisions, affiliates, predecessors, successors, partners, associates, heirs, assigns, agents, managers, members, directors, officers, employees, representatives, lawyers, insurers, owners, principals, shareholders, employee benefit plans and fiduciaries, administrators, transferees and assigns and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called “Claims”), which Executive now has or may hereafter have against the Company Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof. However, the parties expressly acknowledge that this waiver and release shall not affect Executive's right to a defense by legal counsel and indemnification to the extent such rights otherwise exist under the terms of the Employment Agreement, including Section 20 thereof. The Claims released by Executive in this Section 2(a) include, without limiting the generality of the foregoing, any Claims in any way arising out of, based upon, or related to:

 

(i) Executive’s employment by or service to Company or any of the other Company Releasees, or the termination thereof;

 

(ii) any alleged breach of the Employment Agreement or Company’s employee handbook, policies or procedures; or

 

(iii) any alleged tort, including but not limited to misrepresentation, defamation, interference with business relationships, intentional or negligent infliction of emotional distress, negligence or wrongful discharge.

 

Notwithstanding the foregoing, this waiver and release shall not apply to or affect Executive’s rights under this Agreement including, without limitation, any claim against Company and/or the Company Releasees for breach or default hereunder.

 

(b) Statutory Claims. Executive further knowingly and voluntarily releases and discharges the Company Releasees, collectively, separately and severally, for any and all Claims based upon any alleged violation of any federal, state or local statute, ordinance or regulation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended 1991, 42 U.S.C. § 1981; the Americans with Disabilities Act ("ADA"); the Employee Retirement Income Security Act ("ERISA"); the Consolidated Omnibus Budget Reconciliation Act ("COBRA"); the Occupational Safety and Health Act ("OSHA"); the Fair Labor Standards Act ("FLSA"); the Family and Medical Leave Act ("FMLA"); the Equal Pay Act ("EPA"); the Worker Adjustment and Retraining Notification Act ("WARN"); the Immigration Reform and Control Act ("IRCA"); the Sarbanes-Oxley Act; the Federal False Claims Act; the Internal Revenue Code; the National Labor Relations Act; and any and all other local, state and/or federal human or civil rights, wage-hour, pension or labor laws, rules, regulations and/or ordinances which relate to employment, discrimination, retaliation, or payment of wages or other compensation or otherwise.

 

 

Exhibit B to Executive Employment Agreement

 

(c) Release of Claims Under the ADEA. In addition to the foregoing, Executive hereby knowingly and voluntarily releases and discharges the Company Releasees, collectively, separately and severally, from and for any and all Claims arising under the Age Discrimination in Employment Act ("ADEA") and/or the Older Workers Benefit Protection Act ("OWBPA"), which Executive and/or his heirs, administrators, executors, personal representatives, beneficiaries, and assigns may have or claim to have against any of the Company Releasees (such release and waiver referred to as the “ADEA Waiver”). Notwithstanding any other provision or section of this Agreement, Executive does not hereby waive any rights or claims under the ADEA/OWBPA that may arise after the time Executive signs this Agreement.

 

(d) Consideration Period For ADEA Waiver. Executive hereby acknowledges that Executive has been given a period of at least twenty-one (21) days (or, to the extent required by applicable law, forty-five (45) days) to consider the terms of this Release, that Executive is advised to consult with an attorney prior to executing this Release, and that Executive has received good and valuable consideration, to which Executive is otherwise not entitled, in exchange for Executive's execution of this Release. Executive and Company acknowledge and agree that any revisions made to this Release after it was initially delivered to Executive were either not material or were requested by Executive, and expressly agree that such changes do not re-start the consideration period described in the preceding sentence.

 

3. Non-Interference with Governmental Agency Rights. Executive understands that the terms of this Release, including the provisions regarding waiver and release, confidentiality, and non-disparagement, are not intended to interfere with, or waive, any right or obligation (if any) to file a charge, cooperate, testify, report, or participate in an investigation with any appropriate federal, state or local governmental agency, including the Securities and Exchange Commission ("SEC"), the Equal Employment Opportunity Commission ("EEOC"), the Occupational Safety and Health Administration ("OSHA"), the National Labor Relations Board ("NLRB"), or any other federal, state or local government agency charged with enforcement of any law, rule, or regulation applicable to Company's business ("Governmental Agency"); including the ability to communicate with such agency; the reporting of possible violations of any law, rule or regulation; making other disclosures that are protected under whistleblower provisions of any law, rule or regulation; or the receiving of an award for information provided to any Governmental Agency. However, Executive acknowledges and understands that by signing this Release, Executive is fully waiving and releasing the right to receive or accept any individual remedy or relief, monetary or otherwise, obtained through the efforts of any such agency on Executive's behalf or on behalf of a class of individuals through which action or proceeding Executive might otherwise have a right or benefit.

 

4. Post-Termination Survival of Restrictive Covenants. Executive acknowledges and understands, that despite Executive's termination of employment, the obligations set forth in Section 7 (Restrictive Covenants) and Section 8 (Confidentiality), and the rights and remedies for breach and enforcement thereof in the Employment Agreement, shall remain in full force and effect for the durations expressly stated therein, if not unlimited, and as otherwise specified in this Release, regardless of the circumstances of Executive’s termination.

 

 

Exhibit B to Executive Employment Agreement

 

5. Representations by Executive.

 

(a) No Pending Disputes. Executive represents and warrants that no litigation, dispute or other proceeding has been filed or is pending by Executive against Company or any other Company Releasee, and that Executive has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations, or causes of action released herein.

 

(b) No Pending Obligations Owed by Company. Executive represents and warrants that Executive has received all wages and compensation owed through the date Executive signs this Release and that Executive has received all other amounts due from Company through the date Executive signs this Release, including, but not limited to, all bonuses, commissions, paid time off, reimbursements, and any other benefits to which Executive may be entitled from any of the Company Releasees, except for the Termination Compensation provided under Section 5(e) of the Employment Agreement, which will be paid as contemplated therein, and any vested benefits under any Company Releasee’s employee benefit plans which shall be governed by the terms of the applicable plan document and award agreements. Executive further represents and warrants that Executive has been provided with all leave or other accommodations (including under the Family and Medical Leave Act and/or the Americans with Disabilities Act) to which Executive may have been entitled, if any, and that Executive has not suffered any workplace illness or injury other than any illness or injury which Executive has already advised Company in writing, if any.

 

(c) Return of Property/No Improper Disclosure. Executive represents and warrants that Executive has returned all Company property as of the date Executive signs this Release. Executive represents and warrants that Executive has not disclosed any Confidential Information (as defined in the Employment Agreement) except as specifically authorized in the performance of Executive's duties for Company or as otherwise permitted in the Employment Agreement.

 

6. Non-Admission of Liability. This Release shall not be construed as an admission of liability by Company or any other Company Releasee, or as an admission that Company or other any Company Releasee has acted in any way wrongfully towards Executive.

 

7. Confidentiality of Release. Executive acknowledges and agrees that Executive will not, unless required by law or as otherwise permitted by Company, disclose to others any information regarding the terms of this Release, the benefits being paid under it or the fact of its payment (which are deemed confidential), except that Executive may disclose this information to Executive's attorney, accountant or other professional advisor to whom Executive must make the disclosure in order to receive professional services and Executive may disclose or file this Release and the Employment Agreement to the extent required to be filed in any legal proceeding or arbitration brought by or against the Executive in connection with this Release or the Employment Agreement. However, Executive acknowledges that Executive must instruct the parties who have been disclosed such information, as applicable, about the confidential nature of this Agreement and their obligation to maintain the confidentiality of this information, and shall be responsible for any breach of such obligation by such parties.

 

 

Exhibit B to Executive Employment Agreement

 

8. Binding Release. This Release is binding on the parties hereto and their respective successors, heirs, administrators, executors, and assigns. The rights and benefits of Executive under this Agreement being personal to the Executive, they may not be assigned by Executive without the prior written consent of Company; provided, however, Executive expressly acknowledges and agrees that the provisions of this Release, and any and all terms which are expressly incorporated herein, are enforceable against Executive by Company's affiliates, successors and/or assigns or any other Company Releasee, which shall be deemed third party beneficiaries hereof.

 

9. Entire Understanding. This Release constitutes the sole and entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous understandings or agreements between the parties, whether oral or written, on such subject matter, except as expressly provided herein; provided, that, the provisions of the Merger Agreement or other agreement executed in connection with the Transaction, or if applicable, any stock or stock-linked award agreement, or otherwise, shall remain in full force and effect, including but not limited to the restrictive covenants and other obligations thereof.

 

10. Severability. In case any one or more of the provisions in this Release, or of those surviving post-termination provisions of the Employment Agreement incorporated herein, or a portion thereof, shall be held to be invalid, illegal or unenforceable for any reason, (except for the waiver/release provision of Section 2 above), the invalidity, illegality or unenforceability of any provisions or portions shall not affect any other provision or portion hereof; this Release shall be construed as if the invalid, illegal or unenforceable provision or portion had never been contained in this Agreement.

 

11. Governing Law; Venue. The law, including the statutes of limitation, of the State of Delaware shall govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to its or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.

 

12. Dispute Resolution. The Parties agree that, except as otherwise provided in this Release, any controversy, claim or dispute arising out of or relating to this Release or the breach thereof, shall first be submitted to mediation conducted by the Judicial Arbitration and Mediation Service (JAMS). The Parties agree to attempt in good faith to resolve any such dispute in the course of such mediation. If any such dispute is not resolved by mediation, the Parties agree that such dispute shall be submitted to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, or any federal court of competent jurisdiction sitting in the State of Delaware, and the Parties hereby waive any and all defenses and/or objections to jurisdiction and venue in such courts. Each of the parties irrevocably agrees to waive any and all rights they may have to trial by jury in any action, proceeding or claim of any nature relating to this Release, or the enforcement of this Release, and acknowledge that such waiver is knowing and voluntary. In the event of any dispute regarding the interpretation or enforcement, or otherwise arising out of this Release, the prevailing party shall be entitled to an award of its reasonable attorney's fees and costs, including through appeal.

 

13. Revocation Period. Executive has the right to revoke this Release within seven (7) calendar days after Executive’s execution of this Release by giving notice in writing of such revocation to: [●]. No revocation shall be timely or effective unless actually received by Company within the seven day revocation period. In the event that Executive revokes this Release prior to the Effective Date, this Release, and the promises and obligations contained therein, shall automatically and retroactively be deemed null and void and Company's and Executive’s rights, remedies, and obligations to each other shall be reinstated as if this Release had never been executed or delivered including, without limitation, that Company will not be obligated to provide Executive the consideration referenced in Section 1 of this Release.

 

14. Effective Date. This Release shall become effective on the eighth (8^th) calendar day following execution by Executive, where not timely revoked.

 

[SIGNATURES ON FOLLOWING PAGE]

 

 

Exhibit B to Executive Employment Agreement

 

IN WITNESS WHEREOF, the parties freely and voluntarily execute this Release as follows:

 

RumbleOn, Inc.		Executive
By:
Title:

 

 

 

 

Exhibit 10.5

 

EXECUTIVE EMPLOYMENT AGREEMENT

(RUMBLEON, INC.)

 

This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) dated as of August 31, 2021, is entered by and between RumbleOn, Inc., an Nevada corporation (the “Company”), and Mark Tkach (“Executive”) and will be effective as of the Closing of the Transaction (each as defined below) (the “Effective Date”). Each of the Company and Executive are a “Party,” and collectively, they are the “Parties.”

 

WHEREAS, RumbleOn, Inc., along with its wholly owned subsidiaries, has entered into an Agreement and Plan of Merger and Equity Purchase Agreement, as of the date hereof (the “Merger Agreement” and the transactions contemplated thereby the “Transaction”), by which the Company (together with its subsidiaries, including its Acquired Companies through the Transaction, the “Companies”) shall be the surviving corporation as of the closing of the Transaction (the “Closing”);

 

WHEREAS, the Company’s willingness to enter into the Merger Agreement and close the Transaction is conditioned on Executive’s agreement to the terms set forth herein;

 

WHEREAS, as part of the Transaction, Executive, Mark Tkach, shall receive valuable consideration in exchange for the sale and transfer of Executive’s equity in the Acquired Companies to the Company; and

 

WHEREAS, the Company wishes to employ, and/or continue to employ Executive as of the Effective Date; and

 

WHEREAS, Executive wishes to be employed and/or continue to be employed by the Company as of the Effective Date.

 

NOW THEREFORE, in consideration of the mutual covenants and mutual benefits set forth herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Company and Executive agree as follows:

 

1. Representations and Warranties. Other than the restrictive covenants of the Merger Agreement, Executive represents and warrants to the Company that Executive is not bound by any restrictive covenants or other obligations or commitments of any kind that would in any way prevent, restrict, hinder or interfere with Executive’s acceptance of employment under the terms and conditions set forth herein or the performance of all duties and services hereunder to the fullest extent of Executive’s ability and knowledge. Executive understands and acknowledges that Executive is not expected or permitted to use or disclose confidential information belonging to any prior employer in the course of performing Executive’s duties for the Company.

 

2. Term of Employment; Contingencies. As of the Effective Date, the Company will employ Executive and Executive accepts employment by the Company on the terms and conditions herein contained for a period (the “Employment Period”) provided in Section 5. This Agreement is contingent upon the successful closing of the Transaction. In the event that the Transaction does not close, then this Agreement shall be null and void, and the Parties shall have no further obligations hereunder.

 

 

3. Duties and Functions.

 

(a) Executive shall be employed as Chief Operating Officer of the Company and shall oversee, direct and manage the operations of the Company and engage in other responsibilities inherent within the position of Chief Operating Officer. Executive shall report to the Board of Directors (the “Board”) or such persons as the Board may reasonably determine.

 

(b) Executive agrees to undertake the duties and responsibilities inherent in the position of Chief Operating Officer, including the responsibilities commensurate with, and customary for, that position, and which may encompass different or additional duties as may, from time to time, reasonably be assigned by the Board or such persons as the Board may reasonably determine. Executive agrees to abide by the Company’s written policies and procedures in the administration of Executive’s duties.

 

(c) During the Employment Period, Executive will devote Executive’s full time and efforts to the business of the Company and will not engage in consulting work or any trade or business for Executive’s own account or for or on behalf of any other person, firm or corporation to the extent such activities materially or substantially conflict or interfere with the performance of Executive’s duties hereunder.

 

(d) It shall not be a violation of this Agreement for Executive to: serve on civic or charitable boards or committees; deliver lectures, fulfill speaking engagements or teach at educational institutions; or engage in personal investment activities, so long as such activities do not materially or substantially interfere with the performance of Executive’s duties hereunder.

 

4. Compensation.

 

(a) Base Salary: As compensation for Executive’s services hereunder, the Company agrees to pay Executive a base salary at an annual rate of not less than $500,000, payable in accordance with the Company’s normal payroll schedule, but no less frequently than monthly. The Company may withhold from any amounts payable under this Agreement such federal, state or local taxes as shall be required to be withheld pursuant to any applicable law or regulation (the “Base Salary”). Executive’s Base Salary shall be subject to review from time to time, based on corporate policy and contributions made by Executive to the enterprise, and may be increased, but not decreased, during the Employment Period, as specified in the Incentive Program attached as Exhibit A to this Agreement and expressly incorporated herein.

 

(b) Annual Cash Bonus: Beginning with calendar year 2021, Executive shall be eligible to receive an annual cash bonus award with a payout range of 0% - 125% of Executive’s Base Salary (the “Annual Bonus”), upon achievement of the performance metrics adopted by the Board or the Compensation Committee in connection with the Short-Term Annual Cash Bonus Program, as described in the Incentive Program (“Performance Metrics”). Executive shall be entitled to payment of the Annual Bonus for any calendar year that the Performance Metrics are met during the Employment Period. The Company agrees that it shall not eliminate the Annual Cash Bonus, or Executive’s eligibility thereunder, for the duration of the Employment Period.

 

(c) Short-Term Stock Incentive Plan. For 2021, Executive shall receive a grant of Restricted Stock Units (“Initial RSUs”) in connection with the Merger Agreement. Thereafter, during the Employment Period, Executive shall be eligible to receive additional Restricted Stock Units (“RSUs”) during the first week of January of each year, in accordance with the terms and conditions set forth in the Company’s Short-Term Stock Incentive Plan (“STIP”). Pursuant to that STIP and as specified in the Incentive Program attached as Exhibit A to this Agreement, the RSUs shall vest over a three-year period as follows: (i) 33.3% vesting in full on the first anniversary of the date of issue, (ii) an additional 33.3% vesting quarterly on a pro rata basis during the subsequent twelve-month period, and (iii) the final 33.4% vesting quarterly on a pro rata basis during the third twelve-month period. The Company agrees that it shall not eliminate the Short-Term Stock Incentive Plan, or Executive’s eligibility thereunder, for the duration of the Employment Period.

 

 

(d) Long-Term Annual Stock Incentive Plan. During the Employment Period, Executive shall further be entitled to participate in the Company’s Long-Term Annual Stock Incentive Plan (“LTIP”), based upon the terms and conditions set forth therein, as described in the Incentive Program attached as Exhibit A to this Agreement. The Company agrees that it shall not eliminate the Long-Term Stock Incentive Plan, or Executive’s eligibility thereunder, for the duration of the Employment Period.

 

(e) Other Expenses. In addition to the compensation and benefits provided for above, the Company agrees to pay or to reimburse Executive during Executive’s employment for all reasonable, ordinary and necessary, properly documented, business expenses incurred in the performance of Executive’s services hereunder in accordance with Company policy in effect from time to time. Such expenses shall include but not be limited to reimbursement for all travel related expenses which are substantiated to be integrally and directly related to the performance of Executive’s duties while employed by the Company. With regard to such travel expenses, Executive shall have the sole discretion as to the form and class of travel chosen.

 

(f) Paid Time Off. Executive shall be allowed four (4) weeks of paid time off per calendar year, to be taken at times selected by Executive, as well as paid holidays, sick leave, and personal days in accordance with the Company’s policies (collectively, “PTO”). Executive’s accrued, unused PTO shall carry over from year to year and be paid out to Executive at time of separation of employment regardless of the reason.

 

(g) Fringe Benefits. In addition to Executive’s compensation provided by the foregoing, Executive shall be entitled to the benefits available generally to Company’s senior executive level employees pursuant to the Company’s programs which may now or, shall hereafter be in effect, or otherwise established by the Company, subject to the applicable terms and conditions of the benefit plans in effect at that time. Nothing herein shall affect the Company’s ability to modify, alter, terminate or otherwise change any benefit plan it has in effect at any given time, to the extent permitted by law. Notwithstanding, the Company agrees that it shall maintain and not modify, alter or terminate the Annual Cash Bonus, Short-Term Annual Stock Incentive Plan, Long-Term Annual Stock Incentive Plan and/or Executive’s eligibility or vested benefits thereunder for the duration of the Employment Period, as such programs, plans and benefits are described in the Incentive Program attached as Exhibit A to this Agreement, subject to applicable laws and regulations.

 

5. Employment Period.

 

(a) Employment Period. The Employment Period shall commence on the Effective Date and shall continue until the third anniversary of the Effective Date (the “Initial Term”). The term of the Employment Period shall be automatically extended upon the same terms and conditions, for one additional month on the last day of every month following the Effective Date (a “Renewal Date”) such that it has a continuous “rolling” three-year period, unless Executive or Company provides written notice to the other party, at least fifteen (15) days prior to the applicable Renewal Date, of its intention not to extend the term of this Agreement. Thus, at any point of non-renewal, the remaining term would be three (3) years. The period during which Executive is employed hereunder shall be considered the Employment Period.

 

 

(b) Termination by Executive without Good Reason. Notwithstanding the provisions of Section 5(a), Executive may terminate Executive’s employment with Company and this Agreement at any time by giving the Company written notice at least thirty (30) days prior to the effective date of termination (the “Termination Date”). The Company, at its election, may require Executive to continue to perform Executive’s duties hereunder for the full thirty (30) day notice period, or may choose at any time during such 30-day notice period to accelerate the effective date of Executive’s resignation and end the employment relationship immediately (which for purposes of clarity shall not constitute a termination by the Company without Cause). If Executive chooses to terminate the employment relationship without Good Reason (as defined below), Executive shall only be entitled to receive upon such termination: (i) payment of Base Salary through the Termination Date, including through the notice period where termination has been accelerated, (ii) payment of any Annual Bonus for the prior calendar year, if not already paid; (iii) payment for any accrued but unused PTO, (iv) any right to continued benefits required by law (the foregoing (i) through (iv) shall be referred to herein as the “Accrued Obligations”). Payment of all Accrued Obligations owed herein shall be paid to Executive in lump sum, within seven (7) calendar days of the Termination Date or, if the Company accelerates the effective date of Executive’s resignation, then such Accrued Obligations will be paid to Executive on such accelerated effective date.

 

(c) Termination by Executive for Good Reason. Executive may terminate Executive’s employment with Company and this Agreement for Good Reason, which shall include: (A) a material reduction or diminution of Executive’s authorities, duties, responsibilities or Base Salary, which is subject to the provisions of Section 4(a); (B) relocation of Executive’s worksite to a location more than fifty (50) miles from Executive’s then-current location; or (C) a material breach by Company of this Agreement where Executive has provided Company thirty (30) days’ written notice and given the Company thirty (30) days’ opportunity to cure, and the Company has failed to cure such material breach during that notice period; and further provided Executive terminates employment within ninety (90) days following the Company’s failure to cure such material breach. A termination by Executive for Good Reason pursuant to this provision shall entitle Executive to payment of the Accrued Obligations, as well as Termination Compensation (as defined below) as if Executive had been terminated by the Company without Cause under Section (e)(1).

 

(d) Termination by Company for Cause.

 

(i) Notwithstanding the provisions of Section 5(a), at any time during the Employment Period, the Company may terminate Executive’s employment and this Agreement for Cause (defined below), with such termination taking effect upon written notice of the termination for Cause being provided to Executive. If Executive’s employment is terminated for Cause, Executive will not be entitled to and shall not receive any compensation or benefits of any type following the effective date of termination, other than the Accrued Obligations.

 

(ii) “Cause” shall be defined as termination where: (i) the Executive is convicted of fraud, theft or embezzlement against the Company or any subsidiary or affiliate thereof; (ii) the Executive is convicted of a felony or a crime involving moral turpitude; (iii) the Executive substantially breaches any material term of this Agreement and fails to cure such breach within 30 days after the receipt of written notice of such breach from the Company; or (iv) the Executive engages in gross negligence or willful misconduct that causes harm to the business and operations of the Company or a subsidiary or affiliate thereof.

 

(e) Termination by Company Without Cause. The Company may terminate Executive without Cause immediately by giving Executive written notice of such termination. Subject to the conditions set forth in Section 5(e)(ii), if Executive’s employment is terminated by the Company without Cause, in addition to the Accrued Obligations, Executive shall receive the following:

 

(i) a severance payment equivalent to three times (3x) the sum of Executive’s Base Salary and the greater of either the (i) highest Annual Bonus the Executive received during the three calendar years prior to the Termination Date or (ii) the Executive’s target Annual Bonus in effect for the year in which termination occurs. Such severance payment shall be paid in accordance with the Company’s regular payroll cycle, with the first payment commencing upon the pay date immediately following the effective date of the Release, if not timely revoked, as described in this Section 5(e), and on a continuing basis until the full amount has been paid;

 

(ii) if Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall provide for the payment of the Executive’s monthly COBRA payment for Executive and any of the Executive’s dependents that were participating in in such plan immediately prior to Executive’s termination (the “COBRA Subsidy”). The Company shall provide the COBRA Subsidy until the earliest of: (i) the twenty-four (24) month anniversary of the Termination Date, or (ii) the date Executive is no longer eligible to receive COBRA continuation coverage. If the Company cannot provide the COBRA Subsidy without violating applicable law or is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health insurance plans, then the Company shall pay the Executive an equivalent monthly cash payment such that Executive receives, on an after-tax basis, the same amount reimbursement for COBRA benefits for a period of eighteen (18) months; and

 

(iii) automatic and immediate vesting of any and all equity benefits including, without limitation, the Initial RSUs, and RSUs under the STIP and the LTIP (all within seven (7) calendar days of the effective date of the Release, as described in this Section 5(e)).

 

 

The above severance payments, COBRA Subsidy and vesting of all equity benefits under Sections 3(e)(i) through (iii) are collectively referred to as the “Termination Compensation”). Executive shall not be entitled to the Termination Compensation unless Executive executes a separation and release agreement which shall include a full waiver and general release of claims in favor of the Company, in substantially the form and substance attached hereto as Exhibit B (the “Release”), and such Release becoming effective, if not timely revoked under the terms thereof, within fifty-two (52) days following the Termination Date (the “Release Execution Period”). Such release shall not affect Executive’s right to a defense by legal counsel and indemnification, if any, for actions taken within the scope of Executive’s employment. If the Release Execution Period straddles two taxable years of Executive, then the Company shall pay the Termination Compensation starting in the second of such taxable years (with any missed severance payments being paid to the Executive on the first payroll date occurring in the second calendar year). The Parties hereto acknowledge that the Termination Compensation to be provided under Section 5(e)(i) is to be provided in consideration for the above-specified Release.

 

(f) Termination for Executive’s Permanent Disability. If the Executive becomes physically or mentally disabled as determined by a qualified, licensed medical physician mutually selected by the Company and Executive and such disability causes Executive to become unable for a period of more than five (5) consecutive months or for shorter periods aggregating at least five (5) months during any twelve (12) month period to perform the Executive’s duties hereunder on a substantially full-time basis, then the Company will deliver a written notice to Executive stating with specificity the reason for termination and the Executive’s employment will terminate within 30 days of the date of such notice, and this shall be considered a “disability” under this Agreement. Such termination shall not affect the Executive’s benefits under the Company’s disability insurance program, if any, then in effect. In the event Executive is terminated pursuant to this Section 5(f), Company shall pay to Executive all Accrued Obligations and Termination Compensation as if Executive had been terminated by the Company without Cause, subject to reduction by the amount of any disability insurance proceeds paid to or on behalf of Executive.

 

(g) Termination Due to Executive’s Death. This Agreement and Executive’s employment hereunder will terminate immediately upon Executive’s death and the Company shall not have any further liability or obligation to Executive, Executive’s executors, heirs, assigns or any other person claiming under or through Executive’s estate, except that Executive’s estate shall receive payment for all Accrued Obligations and Termination Compensation as if Executive had been terminated by the Company without Cause.

 

(h) Termination Upon Change in Control. In the event of a “Change of Control” (defined herein) Executive may terminate Executive’s employment and this Agreement within ninety (90) days of the effective date of the Change of Control upon thirty (30) days written notice. “Change in Control” shall mean (a) any sale, lease, exchange or other transfer (in one transaction or a series of transactions) of all or substantially all of the assets of the Company; or (b) any consolidation or merger or other business combination of the Company with any other entity where the shareholders of the Company, immediately prior to the consolidation or merger or other business combination would not, immediately after the consolidation or merger or other business combination, beneficially own, directly or indirectly, shares representing fifty percent (50%) of the combined voting power of all of the outstanding securities of the entity issuing cash or securities in the consolidation or merger or other business combination (or its ultimate parent corporation, if any). Upon a Change in Control, 100% of all unvested stock options and/or restricted shares held by Executive shall immediately vest (the “Accelerated Equity Vesting”). Further, upon a Change in Control, Executive shall be entitled to the Accrued Obligations and Termination Compensation as if Executive was terminated without Cause.

 

 

(i) Expiration of the Agreement. If the Agreement expires at the end of the Initial Term or any Renewal Term after proper advance notice by either Party of its/his intent not to renew, the Agreement shall expire and Executive shall receive only the Accrued Obligations as of the date of expiration.

 

(j) Continuing Obligations. The obligations imposed on Executive with respect to non-competition, non-solicitation, confidentiality, non-disclosure and assignment of rights to inventions or developments in this Agreement shall continue, notwithstanding the termination of the employment relationship between the Parties, as set forth in Section 7.

 

6. Company Property. All correspondence, records, documents, software, promotional materials, and other Company property, including all copies, which come into Executive’s possession by, through or in the course of Executive’s employment, regardless of the source and whether created by Executive, are the sole and exclusive property of the Company, and immediately upon the termination of Executive’s employment, or at any time the Company shall request, Executive shall return to the Company all such property of the Companies, without retaining any copies, summaries or excerpts of any kind or in any format whatsoever. Executive shall not destroy any of the Companies’ property, such as by deleting electronic mail or other files, other than in the normal course of Executive’s employment. Executive further agrees that should Executive discover any Company property or Confidential Information in Executive’s possession after the return of such property has been requested, Executive agrees to return it promptly to Company without retaining copies, summaries or excerpts of any kind or in any format whatsoever.

 

7. Restrictive Covenants. Executive agrees and acknowledges that, in connection with Executive’s employment with the Company, Executive will be provided with access to and become familiar with confidential and proprietary information, trade secrets, and substantial relationships belonging to the Companies. Accordingly, in consideration of Executive’s employment with the Company pursuant to this Agreement, any payments made to the Executive as set forth in Section 5 (including the Accelerated Equity Vesting), and other good and valuable consideration, the receipt of which is hereby acknowledged, Executive agrees to the following restrictive covenants:

 

(a) Non-Competition. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s own behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) engage directly or indirectly in the Restricted Business anywhere in the Restricted Territory; or (b) directly or indirectly be or become an officer, director, stockholder, owner, affiliate, partner, member, investor, joint venture, employee, agent, representative, consultant, lender, advisor, manager of, for or to, or otherwise be or become associated with or acquire or hold (of record, beneficially or otherwise) any direct or indirect interest in, any individual or entity that engages directly or indirectly in the Restricted Business anywhere in the Restricted Territory; provided, however, that Executive may, without violating this Section 7(a), own, as a passive investment, shares of capital stock of a publicly-held corporation that engages in the Restricted Business if (i) such shares are actively traded on an established national securities market in the United States or any other foreign securities exchange, (ii) the number of shares of such corporation’s capital stock that are owned beneficially (directly or indirectly) by the Executive represents less than one percent (1%) of the total number of shares of such corporation’s capital stock outstanding, and (iii) Executive is not associated directly or indirectly with such corporation or with any affiliate of such corporation.

 

 

(b) Non-Solicitation of Customers and Other Business Relations. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) solicit, induce or attempt to solicit or induce any business, enterprise, or individual who, during the preceding two-year period, has a business relationship with the Companies (including any customer, licensee, supplier, manufacturer or vendor) (i) to cease doing business with the Companies, or (ii) to diminish or materially alter in a manner harmful to the Companies, such business, enterprise, or individual’s relationship with the Companies; or (iii) to purchase, contract for or receive any products or services from any such business relationship of Company (other than on behalf of the Companies) that engages in the Restricted Business anywhere within the Restricted Territory; provided, however, that nothing contained in this Section 7(b) shall prevent Executive from contracting with a third party who has or had a business relationship with Companies if such contracting does not adversely affect such third party’s business relationship with the Companies.

 

(c) Non-Hiring or Solicitation of Employees and Contractors. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s own behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) directly or indirectly hire or solicit for hire any employee, independent contractor, or consultant or any person who was an employee, independent contractor, or consultant of the Companies within the preceding twelve (12) months, or (b) directly or indirectly encourage, induce, attempt to induce, solicit or attempt to solicit (on Executive’s own behalf or on behalf of any other business, enterprise, or individual) any employee, independent contractor, or consultant to leave or curtail his or her employment or engagement with the Companies; provided, however, that notwithstanding the foregoing, this Section 7(c) shall not prevent Executive from undertaking general solicitations of employment not specifically targeted at employees, independent contractors, or consultants of the Companies (so long as Executive does not, directly or indirectly, specifically solicit for hire any such employee, independent contractor, or consultant).

 

(d) Definitions. For purposes of this Section 7:

 

(i) “Restricted Business” shall mean the operation of a technology-based motor vehicle dealer e-commerce platform and/or any other internet-based platform that allows dealers, consumers, and any other business, enterprise, or individual to buy, sell, trade, finance, and/or transport pre-owned snowmobiles, watercraft, motorcycles, ATVs, UTVs, scooters, side-by-sides, sport bikes, cruisers, or other modes of transportation, as well as the sale, leasing, rental, financing, servicing (including supply of parts) and ancillary activities relating to new and used motorcycles, ATVs, UTVs, scooters, side-by-sides, sport bikes, two- and three-wheeled cruisers, powered watercraft, and any other business engaged in by Companies during Executive’s employment therewith; provided that the ownership and operation of a business in retail (but not wholesale) automobile sales or leasing (NOT including motorcycles, or any other powersport vehicle) shall not be deemed a Restricted Business.

 

(ii) “Restricted Period” shall mean the period while Executive is in the employ of the Company and/or any of its affiliates and for a three (3) year period following the end of such employment for any reason, provided, however, that in the event of any breach by Executive of this Section 7, the Restricted Period shall be automatically extended by a number of days equal to the total number of days in the period from the date on which such breach shall have first occurred through the date as of which such breach shall have been fully cured.

 

 

(iii) “Restricted Territory” means Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, and each territory of the United States, including Washington, D.C.

 

(e) Reasonableness of Restrictive Covenants. The Parties agree that the relevant public policy aspects of post-employment restrictive covenants have been discussed, and that every effort has been made to limit the restrictions placed upon Executive to those that are reasonable and necessary to protect the Companies’ legitimate interests. Executive acknowledges that, based upon Executive’s education, experience, and training, the restrictions set forth in this Section 7 will not prevent Executive from earning a livelihood and supporting himself and Executive’s family during the relevant time period. Executive further acknowledges that, because the Companies market their products and services throughout the Restricted Territory, a more narrow geographic limitation on the restrictive covenants set forth above would not adequately protect the Companies’ legitimate business interests.

 

(f) Modification. The Parties agree that if any restriction set forth in this Section 7 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or geographic area as to which it may be enforceable.

 

(g) Independence of Obligations. The Parties agree that the restrictive covenants set forth in this Section 7 are not intended to, and shall not, supersede any restrictive covenants contained in any other agreement (including, but not limited to the Merger Agreement or other agreement executed in connection with the Transaction, or if applicable, any stock or stock-linked award agreement, or otherwise), and that the provisions of Section 7 (along with the Confidentiality provisions of Section 8 below) shall be construed as separate and distinct obligations of Executive which shall expressly survive the termination of Executive’s employment with the Company.

 

(h) Injunctive Relief. The Parties agree that the restrictions contained in this Section 7 are necessary for the protection of the business and goodwill of the Companies and are considered by Executive to be reasonable for such purposes. Executive agrees that any material breach of Section 7 will result in irreparable harm and damage to the Companies that cannot be adequately compensated by a monetary award. Accordingly, it is expressly agreed that in addition to all other remedies available at law or in equity (including, without limitation, money damages from Executive), the Company and/or such affiliate shall be entitled to a temporary restraining order, preliminary injunction or such other form of injunctive or equitable relief as may be used by any court of competent jurisdiction to restrain or enjoin Executive from breaching any such covenant or provision or to specifically enforce the provisions hereof, without the need to post any bond or other security.

 

 

8. Protection of Confidential Information.

 

(a) Executive agrees that all information, whether or not in writing, relating to the business, technical or financial affairs of the Companies and that is generally understood in the industry as being confidential and/or proprietary information, is the exclusive property of the Companies. Executive agrees to hold in a fiduciary capacity for the sole benefit of the Companies all secret, confidential and/or proprietary information, knowledge, and data, including trade secrets, relating to the Companies obtained during Executive’s employment with the Company or any of its predecessors or affiliates, including but not limited to any trade secrets, confidential or secret designs, website technologies, content, processes, formulae, plans, manuals, devices, machines, know-how, methods, compositions, ideas, improvements, financial and marketing information, costs, pricing, sales, sales volume, salaries, methods and proposals, customer and prospective customer lists, customer identities, customer volume, or customer contact information, identity of key personnel in the employ of customers and prospective customers, amount or kind of customer’s purchases from the Companies, manufacturer lists, manufacturer identities, manufacturer volume, or manufacturer contact information, identity of key personnel in the employ of manufacturers, amount or kind of the Companies’ purchases from manufacturers, system documentation, hardware, engineering and configuration information, computer programs, source and object codes (whether or not patented, patentable, copyrighted or copyrightable), related software development information, inventions or other confidential or proprietary information belonging to the Companies or directly or indirectly relating to the Companies’ business and affairs (“Confidential Information”). Confidential Information shall not include information (i) that has entered the public domain through no fault of Executive, (ii) rightfully known by the receiving person without obligation of confidentiality to any third party prior to receipt of same from the disclosing person, (iii) independently developed by the receiving person without using or referring to any Confidential Information of the Company, and (iv) generally made available to the public by the disclosing person without obligation of confidentiality. Executive agrees that Executive will not at any time, either during the Employment Period or the Confidentiality Period (as defined below), disclose to anyone any Confidential Information, or utilize such Confidential Information for Executive’s own benefit, or for the benefit of third parties without written approval by an officer of the Company. For purposes of this section, the “Confidentiality Period” means for the period of three (3) years after the Termination Date. Executive further agrees that all memoranda, notes, records, data, schematics, sketches, computer programs, prototypes, or written, photographic, magnetic or other documents or tangible objects compiled by Executive or made available to Executive during the Employment Period concerning the business of the Companies and/or their respective clients, including any copies of such materials, shall be the property of the Companies and shall be delivered to the Company on the termination of Executive’s employment, or at any other time upon request of the Company.

 

(b) In the event Executive is questioned by anyone not employed by the Company or by an employee of or a consultant to the Company not authorized to receive such information, in regard to any Confidential Information or any other secret or confidential work of the Companies, or concerning any fact or circumstance relating thereto, or in the event that Executive becomes aware of the unauthorized use of Confidential Information by any party, whether competitive with the Company or not, Executive will promptly notify an officer of the Company.

 

 

(c) Court-Ordered Disclosure. In the event that, at any time during Executive’s employment with the Company or at any time thereafter, Executive receives a request to disclose any Confidential Information under the terms of a subpoena or order issued by a court or by a governmental body, Executive agrees to notify the Company immediately of the existence, terms, and circumstances surrounding such request, to consult with the Company on the advisability of taking legally available steps to resist or narrow such request; and, if disclosure of such Confidential Information is required to prevent Executive from being held in contempt or subject to other penalty, to furnish only such portion of the Confidential Information as, in the written opinion of counsel satisfactory to the Company, Executive is legally compelled to disclose, and to exercise Executive’s reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.

 

(d) Non-Interference with Governmental Agency Rights. The provisions of this Agreement and of any other agreement between Executive and the Company regarding confidentiality and non-disclosure are not intended to interfere with, or waive, any right or obligation (if any) to file a charge, cooperate, testify, report, or participate in an investigation with any appropriate federal, state or local governmental agency, including the Securities and Exchange Commission (“SEC”), the Equal Employment Opportunity Commission (“EEOC”), the Occupational Safety and Health Administration (“OSHA”), the National Labor Relations Board (“NLRB”), or any other federal, state or local government agency charged with enforcement of any law, rule, or regulation applicable to Company’s business (“Governmental Agency”); including the ability to communicate with such agency; the reporting of possible violations of any law, rule or regulation; making other disclosures that are protected under whistleblower provisions of any law, rule or regulation; or the receiving of an award for information provided to any Governmental Agency.

 

(e) Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, Executive acknowledges that Executive shall not have criminal or civil liability under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the trade secret to Executive’s attorney and may use the trade secret information in the court proceeding, if Executive (X) files any document containing the trade secret under seal and (Y) does not disclose the trade secret, except pursuant to court order.

 

9. Intellectual Property.

 

(a) Disclosure of Inventions. Executive will promptly disclose in confidence to the Company all inventions, improvements, processes, products, designs, original works of authorship, formulas, processes, compositions of matter, computer software programs, Internet products and services, e-commerce products and services, e-entertainment products and services, databases, mask works, trade secrets, product improvements, product ideas, new products, discoveries, methods, software, uniform resource locators or proposed uniform resource locators (“URLs”), domain names or proposed domain names, any trade names, trademarks or slogans, which may or may not be subject to or able to be patented, copyrighted, registered, or otherwise protected by law (the “Inventions”) that Executive makes, conceives or first reduces to practice or creates, either alone or jointly with others, during the period of Executive’s employment with the Company, in the course of Executive’s employment, and whether or not such Inventions are patentable, copyrightable or able to be protected as trade secrets, or otherwise able to be registered or protected by law.

 

 

(b) Assignment of Company Inventions; Work for Hire. Executive agrees that all Inventions that (i) are developed using equipment, supplies, facilities or trade secrets of the Companies, (ii) result from work performed by Executive for the Companies, or (iii) relate to the Companies’ business or current or anticipated research and development (the “Company Inventions”), will be the sole and exclusive property of the Company and are hereby irrevocably assigned by Executive to the Company from the moment of their creation and fixation in tangible media. Executive further acknowledges and agrees that any copyrightable works prepared by Executive within the course of Executive’s employment are “works for hire” under the Copyright Act and that the Company will be considered the author and owner of such copyrightable works.

 

(c) Assignment of Other Rights. In addition to the foregoing assignment of Company Inventions to the Company, Executive hereby irrevocably transfers and assigns to the Company: (i) all worldwide patents, patent applications, copyrights, mask works, trade secrets and other intellectual property rights in any Company Invention; and (ii) any and all “Moral Rights” (as defined below) that Executive may have in or with respect to any Company Invention. Executive also hereby forever waives and agrees never to assert any and all Moral Rights Executive may have in or with respect to any Company Invention, even after termination of Executive’s work on behalf of the Companies. “Moral Rights” means any rights to claim authorship of an Company Invention, to object to or prevent the modification of any Company Invention, or to withdraw from circulation or control the publication or distribution of any Company Invention, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”

 

(d) Assistance. Executive agrees to reasonably cooperate with the Company, at the Company’s sole cost and expense, to obtain and enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company Inventions in any and all countries. At the Company’s reasonably request, Executive will execute documents necessary for use in obtaining or enforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. Executive’s obligations under this section will continue for a period of twelve (12) months beyond the termination of Executive’s employment with the Company, provided that the Company will compensate Executive at a reasonable rate after such termination for time or expenses actually spent by Executive at the Company’s request on such assistance. Executive appoints the Secretary of the Company as Executive’s attorney-in-fact to execute documents on Executive’s behalf sole for the limited purpose set forth in this Section 9(d).

 

10. Publicity. Neither Party shall issue, without consent of the other Party, any press release or make any public announcement with respect to this Agreement or the employment relationship between them, or the ending of such relationship.

 

11. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their heirs, personal representatives, successors and assigns. Executive acknowledges and agrees that the Company may, in its sole discretion, assign this Agreement (i) to an affiliate of the Company at any time, or (ii) in the event the Company is acquired, is a non-surviving party in a merger, or transfers substantially all of its assets, to the transferee or surviving company, in each case without being required to obtain Executive’s consent. The Parties understand that the obligations of Executive are personal and may not be assigned by Executive.

 

12. Entire Agreement. This Agreement and the Exhibits attached hereto contains the entire understanding of Executive and the Company with respect to employment of Executive and supersedes any and all prior understandings, written or oral, regarding the terms or conditions of Executive’s employment with the Company. Notwithstanding the foregoing, except for the provisions of the Incentive Program attached hereto as Exhibit A, the provisions of this Agreement are not intended to, and shall not, supersede any restrictive covenants contained in any other agreements (including, but not limited to, any obligations related to non-competition, non-solicitation, confidentiality, non-disparagement, and/or assignment of inventions in an agreement entered into between Executive and the Company or any related or affiliated entity), and the provisions of this Agreement and of any other such agreements shall be construed as separate and distinct obligations of Executive. This Agreement may not be amended, waived, discharged or terminated orally, but only by an instrument in writing, specifically identified as an amendment to this Agreement, and signed by both Parties. By entering into this Agreement, Executive certifies and acknowledges that Executive has carefully read all of the provisions of this Agreement and that Executive voluntarily and knowingly enters into this Agreement.

 

 

13. Severability; Modification. If any portion, provision, section or subsection of this Agreement is determined to be unreasonable or unenforceable, for any reason whatsoever, the parties agree that such portion, provision, section or subsection may be severed, modified or narrowed, either by a court or the Company, so as to provide the maximum legally enforceable protection of the Companies’ legitimate business interests, without negating or impairing any other restrictions or agreements set forth herein. If any portion, provision, section or subsection of this Agreement is held to be invalid, illegal, or unenforceable, it shall not affect the other provisions of this Agreement, which shall remain in effect. This Agreement shall be construed in all respects as if such invalid, illegal or unenforceable provision was omitted.

 

14. Tax Consequences. Except as otherwise specifically provided in this Agreement, the Company will have no obligation to any person entitled to the benefits of this Agreement with respect to any tax obligation any such person incurs as a result of or attributable to this Agreement, including all supplemental agreements and employee benefits plans incorporated by reference therein, or arising from any payments made or to be made under this Agreement or thereunder.

 

15. Golden Parachute Excise Tax.

 

(a) Parachute Payments. If any payment or benefit Executive would receive pursuant to this Agreement or pursuant to any other agreement with the Company following a change in the ownership or effective control of the Company or change in the ownership of a substantial portion of the assets of the Company (which change, as further defined in Section 280G of the Code and regulations promulgated thereunder (“Section 280G”), is referred to herein as a “Change in Control” from the Company or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G, and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: (1) cash payments, in the following order: (a) first, severance payments under this Agreement, (b) second, severance payments under any other agreement with the Company and (c) third, any other cash payments under any of the foregoing agreements; (2) cancellation of the acceleration of vesting of stock options, restricted stock, restricted stock units or any other awards that vest based on attainment of performance measures; (3) cancellation of the acceleration of vesting of stock options, restricted stock and restricted stock units or any other awards that vest only based on Executive’s continued service to the Company, taking the last ones scheduled to vest (absent the acceleration) first, and (4) other non-cash forms of benefits.

 

(b) Calculations. The foregoing calculations will be performed at the expense of the Company by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company. The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within thirty (30) calendar days after the Change in Control, the date of termination, if applicable, and any such other time or times as may be reasonably requested by the Company or Executive. If the Accounting Firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment.  Any good faith determinations of the Accounting Firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

 

 

16. Section 409A.

 

(a) This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and Treasury guidance promulgated thereunder (“Section 409A of the Code”). If the Company determines in good faith that any provision of this Agreement would cause Executive to incur an additional tax, penalty, or interest under Section 409A of the Code, the Company and Executive shall use reasonable efforts to reform such provision, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code or causing the imposition of such additional tax, penalty, or interest under Section 409A of the Code. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to Executive under this Agreement.

 

(b) For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event may Executive, directly or indirectly, designate the calendar year of payment.

 

(c) With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, Executive, as specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

 

(d) “Termination of employment,” “resignation,” or words of similar import, as used in this Agreement means, for purposes of any payments under this Agreement that are payments of deferred compensation subject to Section 409A of the Code, Executive’s “separation from service” as defined in Section 409A of the Code.

 

(e) To the extent that Section 409A of the Code would cause an adverse tax consequence to the Executive upon accelerating any payment of Termination Compensation pursuant to Section 5(h) upon a Change in Control (“Section 409A Payments”), a Change in Control shall not be deemed to occur with respect to such Section 409A Payments unless the Change in Control qualifies as a “Change in the Ownership or Effective Control of a Corporation or in the Ownership of a Substantial Portion of the Assets of a Corporation” under Treasury Department Regulation 1.409A-3(i)(5), as revised from time to time in either subsequent regulations or other guidance and such Section 409A Payments shall be made at the time such payments would have otherwise been made absent the Change in Control.

 

(f) Neither the Company nor Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A.

 

(g) If a payment obligation under this Agreement arises on account of Executive’s separation from service while Executive is a “specified employee” (as defined under Section 409A of the Code and determined in good faith by the Company), any payment of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be paid within 15 days after the end of the six-month period beginning on the date of such separation from service or, if earlier, within 15 days after the appointment of the personal representative or executor of Executive’s estate following Executive’s death.

 

 

17. Governing Law. The law, including the statutes of limitation, of the State of Delaware shall govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to its or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.

 

18. Notices. Any notice provided for in this Agreement shall be provided in writing. Notices shall be effective from the date of service, if served personally on the Party to whom notice is to be given, or on the second day after mailing, if mailed by first class mail, postage prepaid. Notices shall be properly addressed to the Parties at their respective addresses or to such other address as either Party may later specify by notice to the other.

 

19. Dispute Resolution. The Parties agree that, except as otherwise provided in this Agreement, any controversy, claim or dispute arising out of or relating to this Agreement or the breach thereof, or arising out of or relating to the employment of Executive, or the termination thereof, including any statutory or common law claims under federal, state, or local law, including all laws prohibiting discrimination in the workplace, shall first be submitted to mediation conducted by the Judicial Arbitration and Mediation Service (JAMS). The Parties agree to attempt in good faith to resolve any such dispute in the course of such mediation. If any such dispute is not resolved by mediation, the Parties agree that such dispute shall be submitted to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, or any federal court of competent jurisdiction sitting in the State of Delaware, and the Parties hereby waive any and all defenses and/or objections to jurisdiction and venue in such courts. Notwithstanding anything herein to the contrary, the Parties further acknowledge and agree that, due to the nature of the confidential information, trade secrets, and intellectual property belonging to the Companies to which Executive has or will be given access, and the likelihood of significant harm that the Company would suffer in the event that such information was disclosed to third parties, nothing in this paragraph shall preclude the Company from immediately going to court to seek injunctive relief to prevent Executive from violating the obligations established in Sections 7, 8 or 9 of this Agreement. Each of the parties irrevocably agrees to waive any and all rights they may have to trial by jury in any action, proceeding or claim of any nature relating to this Agreement, or the enforcement of this Agreement, and acknowledge that such waiver is knowing and voluntary. In the event of any dispute regarding the interpretation or enforcement, or otherwise arising out of this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney’s fees and costs, including through appeal.

 

20. Indemnification. The Company shall indemnify and hold harmless Executive for any liability to any third-party incurred by reason of any act or omission performed by Executive while acting in good faith on behalf of the Company and within the scope of the authority of Executive pursuant to this Agreement and under the rules and policies of the Company, except that Executive must have in good faith believed that such action was in the best interest of the Company and such course of action or inaction must not have constituted gross negligence, fraud, willful misconduct, or breach of a fiduciary duty.

 

21. Miscellaneous.

 

(a) No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.

 

(b) The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.

 

(c) The language in all parts of this Agreement will be construed, in all cases, according to its fair meaning, and not for or against either Party hereto. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party will not be employed in the interpretation of this Agreement.

 

(d) Capitalized terms used in this Agreement have the meanings ascribed to them by definition in this Agreement; or if not expressly defined in this Agreement, to the meanings ascribed in the Merger Agreement.

 

(e) The obligations of Company under this Agreement, including its obligation to pay the compensation provided for in this Agreement, are contingent upon Executive’s performance of Executive’s obligations under this Agreement.

 

(f) This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement.

 

 

IN WITNESS WHEREOF, each of the Parties hereto has caused this Executive Employment Agreement to be duly executed, by its authorized officers or individually, on the Effective Date.

 

	RumbleOn, Inc.
	By:	/s/ Marshall Chesrown
		Name:	Marshall Chesrown
		Title:	Chief Executive Officer
	/s/ Mark Tkach
	Mark Tkach

 

 

Exhibit A to Executive Employment Agreement

 

[See Executive Incentive Plan included in definitive proxy statement filed on July 1, 2021.]

 

 

Exhibit B to Executive Employment Agreement

 

Release Agreement

 

This Release Agreement (this “Release”) is executed pursuant to Section 5(e)(iii) of that certain Executive Employment Agreement, dated as of August 31, 2021 (the “Employment Agreement”), between RumbleOn, Inc., a Nevada corporation (the “Company”), and Mark Tkach (“Executive”). All terms capitalized and not defined herein shall have the meaning given in the Employment Agreement. Executive acknowledges that the Termination Compensation under this Release does not, in any way, extend the period of employment or continuous service beyond the last day of employment or confer any other rights or benefits upon Executive other than what may be set forth expressly herein.

 

1. Full and Adequate Consideration. Executive acknowledges and agrees that the Termination Compensation shall constitute full and adequate consideration that Executive would not otherwise be entitled but for the promises and obligations set forth in this Release, including Executive’s waiver and general release of claims against Company, cooperation during any transitional period, and adherence to other post-termination obligations. Executive acknowledges that Company has no further obligation to Executive, including to pay any additional amounts of money or benefits, other than as set forth below:

 

(a) Severance Payment. In accordance with and pursuant to Section 5(e)(i) of the Employment Agreement, if Executive is terminated by Company (other than with Cause under Section 5(d), by Executive without Good Reason under Section 5(b), or upon Expiration of the Agreement under Section 5(i)), then in addition to the Accrued Obligations, Executive shall receive a severance payment equivalent to three times (3x) the sum of Executive’s Base Salary and the greater of either the (i) highest Annual Bonus the Executive received during the three calendar years prior to the Termination Date or (ii) the Executive’s target Annual Bonus in effect for the year in which termination occurs. Such severance payment shall be paid in accordance with the Company’s regular payroll cycle, with the first payment commencing upon the pay date immediately following the effective date of this Release, if not timely revoked under the terms hereof, within fifty-two (52) days following the Termination Date (the “Release Execution Period”). If the Release Execution Period straddles two taxable years of Executive, then the Company shall pay the Termination Compensation starting in the second of such taxable years (with any missed severance payments being paid to Executive on the first payroll date occurring in the second calendar year).

 

(b) COBRA Subsidy. If Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall provide for the payment of the Executive’s monthly COBRA payment for Executive and any of the Executive’s dependents that were participating in in such plan immediately prior to Executive’s termination (the “COBRA Subsidy”). The Company shall provide the COBRA Subsidy until the earliest of: (i) the twenty-four (24) month anniversary of the Termination Date, or (ii) the date Executive is no longer eligible to receive COBRA continuation coverage. If the Company cannot provide the COBRA Subsidy without violating applicable law or is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health insurance plans, then the Company shall pay the Executive an equivalent monthly cash payment such that Executive receives, on an after-tax basis, the same amount reimbursement for COBRA benefits for a period of eighteen (18) months.

 

(c) Equity Benefits. Executive shall have automatic and immediate vesting of any and all equity benefits including, without limitation, the Initial RSUs, and RSUs under the STIP and the LTIP all (within seven (7) calendar days of the effective date of this Release, as described in Section 5(e) of the Employment Agreement).

 

 

Exhibit B to Executive Employment Agreement

 

2. Waiver and Release of Claims.

 

(a) General Release. Executive, for and on behalf of himself and each of his heirs, administrators, executors, personal representatives, beneficiaries, and assigns, to the maximum extent permitted by law, does hereby release and forever discharge the “Company Releasees” hereunder, consisting of RumbleOn, Inc., and each of its past, present and future parents, subsidiaries, divisions, affiliates, predecessors, successors, partners, associates, heirs, assigns, agents, managers, members, directors, officers, employees, representatives, lawyers, insurers, owners, principals, shareholders, employee benefit plans and fiduciaries, administrators, transferees and assigns and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called “Claims”), which Executive now has or may hereafter have against the Company Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof. However, the parties expressly acknowledge that this waiver and release shall not affect Executive’s right to a defense by legal counsel and indemnification to the extent such rights otherwise exist under the terms of the Employment Agreement, including Section 20 thereof. The Claims released by Executive in this Section 2(a) include, without limiting the generality of the foregoing, any Claims in any way arising out of, based upon, or related to:

 

(i) Executive’s employment by or service to Company or any of the other Company Releasees, or the termination thereof;

 

(ii) any alleged breach of the Employment Agreement or Company’s employee handbook, policies or procedures; or

 

(iii) any alleged tort, including but not limited to misrepresentation, defamation, interference with business relationships, intentional or negligent infliction of emotional distress, negligence or wrongful discharge.

 

Notwithstanding the foregoing, this waiver and release shall not apply to or affect Executive’s rights under this Agreement including, without limitation, any claim against Company and/or the Company Releasees for breach or default hereunder.

 

(b) Statutory Claims. Executive further knowingly and voluntarily releases and discharges the Company Releasees, collectively, separately and severally, for any and all Claims based upon any alleged violation of any federal, state or local statute, ordinance or regulation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended 1991, 42 U.S.C. § 1981; the Americans with Disabilities Act (“ADA”); the Employee Retirement Income Security Act (“ERISA”); the Consolidated Omnibus Budget Reconciliation Act (“COBRA”); the Occupational Safety and Health Act (“OSHA”); the Fair Labor Standards Act (“FLSA”); the Family and Medical Leave Act (“FMLA”); the Equal Pay Act (“EPA”); the Worker Adjustment and Retraining Notification Act (“WARN”); the Immigration Reform and Control Act (“IRCA”); the Sarbanes-Oxley Act; the Federal False Claims Act; the Internal Revenue Code; the National Labor Relations Act; and any and all other local, state and/or federal human or civil rights, wage-hour, pension or labor laws, rules, regulations and/or ordinances which relate to employment, discrimination, retaliation, or payment of wages or other compensation or otherwise.

 

 

Exhibit B to Executive Employment Agreement

 

(c) Release of Claims Under the ADEA. In addition to the foregoing, Executive hereby knowingly and voluntarily releases and discharges the Company Releasees, collectively, separately and severally, from and for any and all Claims arising under the Age Discrimination in Employment Act (“ADEA”) and/or the Older Workers Benefit Protection Act (“OWBPA”), which Executive and/or his heirs, administrators, executors, personal representatives, beneficiaries, and assigns may have or claim to have against any of the Company Releasees (such release and waiver referred to as the “ADEA Waiver”). Notwithstanding any other provision or section of this Agreement, Executive does not hereby waive any rights or claims under the ADEA/OWBPA that may arise after the time Executive signs this Agreement.

 

(d) Consideration Period For ADEA Waiver. Executive hereby acknowledges that Executive has been given a period of at least twenty-one (21) days (or, to the extent required by applicable law, forty-five (45) days) to consider the terms of this Release, that Executive is advised to consult with an attorney prior to executing this Release, and that Executive has received good and valuable consideration, to which Executive is otherwise not entitled, in exchange for Executive’s execution of this Release. Executive and Company acknowledge and agree that any revisions made to this Release after it was initially delivered to Executive were either not material or were requested by Executive, and expressly agree that such changes do not re-start the consideration period described in the preceding sentence.

 

3. Non-Interference with Governmental Agency Rights. Executive understands that the terms of this Release, including the provisions regarding waiver and release, confidentiality, and non-disparagement, are not intended to interfere with, or waive, any right or obligation (if any) to file a charge, cooperate, testify, report, or participate in an investigation with any appropriate federal, state or local governmental agency, including the Securities and Exchange Commission (“SEC”), the Equal Employment Opportunity Commission (“EEOC”), the Occupational Safety and Health Administration (“OSHA”), the National Labor Relations Board (“NLRB”), or any other federal, state or local government agency charged with enforcement of any law, rule, or regulation applicable to Company’s business (“Governmental Agency”); including the ability to communicate with such agency; the reporting of possible violations of any law, rule or regulation; making other disclosures that are protected under whistleblower provisions of any law, rule or regulation; or the receiving of an award for information provided to any Governmental Agency. However, Executive acknowledges and understands that by signing this Release, Executive is fully waiving and releasing the right to receive or accept any individual remedy or relief, monetary or otherwise, obtained through the efforts of any such agency on Executive’s behalf or on behalf of a class of individuals through which action or proceeding Executive might otherwise have a right or benefit.

 

4. Post-Termination Survival of Restrictive Covenants. Executive acknowledges and understands, that despite Executive’s termination of employment, the obligations set forth in Section 7 (Restrictive Covenants) and Section 8 (Confidentiality), and the rights and remedies for breach and enforcement thereof in the Employment Agreement, shall remain in full force and effect for the durations expressly stated therein, if not unlimited, and as otherwise specified in this Release, regardless of the circumstances of Executive’s termination.

 

 

Exhibit B to Executive Employment Agreement

 

5. Representations by Executive.

 

(a) No Pending Disputes. Executive represents and warrants that no litigation, dispute or other proceeding has been filed or is pending by Executive against Company or any other Company Releasee, and that Executive has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations, or causes of action released herein.

 

(b) No Pending Obligations Owed by Company. Executive represents and warrants that Executive has received all wages and compensation owed through the date Executive signs this Release and that Executive has received all other amounts due from Company through the date Executive signs this Release, including, but not limited to, all bonuses, commissions, paid time off, reimbursements, and any other benefits to which Executive may be entitled from any of the Company Releasees, except for the Termination Compensation provided under Section 5(e) of the Employment Agreement, which will be paid as contemplated therein, and any vested benefits under any Company Releasee’s employee benefit plans which shall be governed by the terms of the applicable plan document and award agreements. Executive further represents and warrants that Executive has been provided with all leave or other accommodations (including under the Family and Medical Leave Act and/or the Americans with Disabilities Act) to which Executive may have been entitled, if any, and that Executive has not suffered any workplace illness or injury other than any illness or injury which Executive has already advised Company in writing, if any.

 

(c) Return of Property/No Improper Disclosure. Executive represents and warrants that Executive has returned all Company property as of the date Executive signs this Release. Executive represents and warrants that Executive has not disclosed any Confidential Information (as defined in the Employment Agreement) except as specifically authorized in the performance of Executive’s duties for Company or as otherwise permitted in the Employment Agreement.

 

6. Non-Admission of Liability. This Release shall not be construed as an admission of liability by Company or any other Company Releasee, or as an admission that Company or other any Company Releasee has acted in any way wrongfully towards Executive.

 

7. Confidentiality of Release. Executive acknowledges and agrees that Executive will not, unless required by law or as otherwise permitted by Company, disclose to others any information regarding the terms of this Release, the benefits being paid under it or the fact of its payment (which are deemed confidential), except that Executive may disclose this information to Executive’s attorney, accountant or other professional advisor to whom Executive must make the disclosure in order to receive professional services and Executive may disclose or file this Release and the Employment Agreement to the extent required to be filed in any legal proceeding or arbitration brought by or against the Executive in connection with this Release or the Employment Agreement. However, Executive acknowledges that Executive must instruct the parties who have been disclosed such information, as applicable, about the confidential nature of this Agreement and their obligation to maintain the confidentiality of this information, and shall be responsible for any breach of such obligation by such parties.

 

 

Exhibit B to Executive Employment Agreement

 

8. Binding Release. This Release is binding on the parties hereto and their respective successors, heirs, administrators, executors, and assigns. The rights and benefits of Executive under this Agreement being personal to the Executive, they may not be assigned by Executive without the prior written consent of Company; provided, however, Executive expressly acknowledges and agrees that the provisions of this Release, and any and all terms which are expressly incorporated herein, are enforceable against Executive by Company’s affiliates, successors and/or assigns or any other Company Releasee, which shall be deemed third party beneficiaries hereof.

 

9. Entire Understanding. This Release constitutes the sole and entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous understandings or agreements between the parties, whether oral or written, on such subject matter, except as expressly provided herein; provided, that, the provisions of the Merger Agreement or other agreement executed in connection with the Transaction, or if applicable, any stock or stock-linked award agreement, or otherwise, shall remain in full force and effect, including but not limited to the restrictive covenants and other obligations thereof.

 

10. Severability. In case any one or more of the provisions in this Release, or of those surviving post-termination provisions of the Employment Agreement incorporated herein, or a portion thereof, shall be held to be invalid, illegal or unenforceable for any reason, (except for the waiver/release provision of Section 2 above), the invalidity, illegality or unenforceability of any provisions or portions shall not affect any other provision or portion hereof; this Release shall be construed as if the invalid, illegal or unenforceable provision or portion had never been contained in this Agreement.

 

11. Governing Law; Venue. The law, including the statutes of limitation, of the State of Delaware shall govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to its or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.

 

12. Dispute Resolution. The Parties agree that, except as otherwise provided in this Release, any controversy, claim or dispute arising out of or relating to this Release or the breach thereof, shall first be submitted to mediation conducted by the Judicial Arbitration and Mediation Service (JAMS). The Parties agree to attempt in good faith to resolve any such dispute in the course of such mediation. If any such dispute is not resolved by mediation, the Parties agree that such dispute shall be submitted to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, or any federal court of competent jurisdiction sitting in the State of Delaware, and the Parties hereby waive any and all defenses and/or objections to jurisdiction and venue in such courts. Each of the parties irrevocably agrees to waive any and all rights they may have to trial by jury in any action, proceeding or claim of any nature relating to this Release, or the enforcement of this Release, and acknowledge that such waiver is knowing and voluntary. In the event of any dispute regarding the interpretation or enforcement, or otherwise arising out of this Release, the prevailing party shall be entitled to an award of its reasonable attorney’s fees and costs, including through appeal.

 

13. Revocation Period. Executive has the right to revoke this Release within seven (7) calendar days after Executive’s execution of this Release by giving notice in writing of such revocation to: [●]. No revocation shall be timely or effective unless actually received by Company within the seven day revocation period. In the event that Executive revokes this Release prior to the Effective Date, this Release, and the promises and obligations contained therein, shall automatically and retroactively be deemed null and void and Company’s and Executive’s rights, remedies, and obligations to each other shall be reinstated as if this Release had never been executed or delivered including, without limitation, that Company will not be obligated to provide Executive the consideration referenced in Section 1 of this Release.

 

14. Effective Date. This Release shall become effective on the eighth (8^th) calendar day following execution by Executive, where not timely revoked.

 

[SIGNATURES ON FOLLOWING PAGE]

 

 

Exhibit B to Executive Employment Agreement

 

IN WITNESS WHEREOF, the parties freely and voluntarily execute this Release as follows:

 

RumbleOn, Inc.		Executive
By:
Title:

 

 

 

Exhibit 10.6

 

EXECUTIVE EMPLOYMENT AGREEMENT

(RUMBLEON, INC.)

 

This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) dated as of August 31, 2021, is entered by and between RumbleOn, Inc., an Nevada corporation (the “Company”), and Peter Levy (“Executive”) and will be effective as of the Closing of the Transaction (each as defined below) (the “Effective Date”). Each of the Company and Executive are a “Party,” and collectively, they are the “Parties.”

 

WHEREAS, RumbleOn, Inc., along with its wholly owned subsidiaries, has entered into an Agreement and Plan of Merger and Equity Purchase Agreement, as of the date hereof (the “Merger Agreement” and the transactions contemplated thereby the “Transaction”), by which the Company (together with its subsidiaries, including its Acquired Companies through the Transaction, the “Companies”) shall be the surviving corporation as of the closing of the Transaction (the “Closing”);

 

WHEREAS, the Company’s willingness to enter into the Merger Agreement and close the Transaction is conditioned on Executive’s agreement to the terms set forth herein;

 

WHEREAS, as part of the Transaction, Executive, Peter Levy, shall receive acceleration of Executive's performance RSUs issued in January 2020 and an additional 30,000 shares of RSUs; and

 

WHEREAS, the Company wishes to employ, and/or continue to employ Executive as of the Effective Date; and

 

WHEREAS, Executive wishes to be employed and/or continue to be employed by the Company as of the Effective Date.

 

NOW THEREFORE, in consideration of the mutual covenants and mutual benefits set forth herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Company and Executive agree as follows:

 

1. Representations and Warranties. Executive represents and warrants to the Company that Executive is not bound by any restrictive covenants or other obligations or commitments of any kind that would in any way prevent, restrict, hinder or interfere with Executive’s acceptance of employment under the terms and conditions set forth herein or the performance of all duties and services hereunder to the fullest extent of Executive’s ability and knowledge. Executive understands and acknowledges that Executive is not expected or permitted to use or disclose confidential information belonging to any prior employer in the course of performing Executive’s duties for the Company.

 

2. Term of Employment; Contingencies. As of the Effective Date, the Company will employ Executive and Executive accepts employment by the Company on the terms and conditions herein contained for a period (the “Employment Period”) provided in Section 5. This Agreement is contingent upon the successful closing of the Transaction. In the event that the Transaction does not close, then this Agreement shall be null and void, and the Parties shall have no further obligations hereunder.

 

 

3. Duties and Functions.

 

(a) Executive shall be employed as President of the Company and shall oversee, direct and manage the operations of the Company and engage in other responsibilities inherent within the position of President. Executive shall report to the Chief Executive Officer or the Board of Directors (the “Board”).

 

(b) Executive agrees to undertake the duties and responsibilities inherent in the position of President, including the responsibilities commensurate with, and customary for, that position, and which may encompass different or additional duties as may, from time to time, reasonably be assigned by the Board and/or the Chief Executive Officer. Executive agrees to abide by the Company's written policies and procedures in the administration of Executive's duties.

 

(c) During the Employment Period, Executive will devote Executive’s full time and efforts to the business of the Company and will not engage in consulting work or any trade or business for Executive’s own account or for or on behalf of any other person, firm or corporation to the extent such activities materially or substantially conflict or interfere with the performance of Executive’s duties hereunder.

 

(d) It shall not be a violation of this Agreement for Executive to: serve on civic or charitable boards or committees; deliver lectures, fulfill speaking engagements or teach at educational institutions; or engage in personal investment activities, so long as such activities do not materially or substantially interfere with the performance of Executive’s duties hereunder.

 

4. Compensation.

 

(a) Base Salary: As compensation for Executive’s services hereunder, the Company agrees to pay Executive a base salary at an annual rate of not less than $500,000, payable in accordance with the Company’s normal payroll schedule, but no less frequently than monthly. The Company may withhold from any amounts payable under this Agreement such federal, state or local taxes as shall be required to be withheld pursuant to any applicable law or regulation (the "Base Salary"). Executive’s Base Salary shall be subject to review from time to time, based on corporate policy and contributions made by Executive to the enterprise, and may be increased, but not decreased, during the Employment Period, as specified in the Incentive Program attached as Exhibit A to this Agreement and expressly incorporated herein.

 

(b) Annual Cash Bonus: Beginning with calendar year 2021, Executive shall be eligible to receive an annual cash bonus award with a payout range of 0% - 125% of Executive's Base Salary (the "Annual Bonus"), upon achievement of the performance metrics adopted by the Board or the Compensation Committee in connection with the Short-Term Annual Cash Bonus Program, as described in the Incentive Program (“Performance Metrics”). Executive shall be entitled to payment of the Annual Bonus for any calendar year that the Performance Metrics are met during the Employment Period. The Company agrees that it shall not eliminate the Annual Cash Bonus, or Executive's eligibility thereunder, for the duration of the Employment Period.

 

 

(c) Short-Term Stock Incentive Plan.  For 2021, Executive shall receive a grant of Restricted Stock Units ("Initial RSUs") in connection with the Merger Agreement. Thereafter, during the Employment Period, Executive shall be eligible to receive additional Restricted Stock Units (“RSUs”) during the first week of January of each year, in accordance with the terms and conditions set forth in the Company's Short-Term Stock Incentive Plan ("STIP").  Pursuant to that STIP and as specified in the Incentive Program attached as Exhibit A to this Agreement, the RSUs shall vest over a three-year period as follows:  (i) 33.3% vesting in full on the first anniversary of the date of issue, (ii) an additional 33.3% vesting quarterly on a pro rata basis during the subsequent twelve-month period, and (iii) the final 33.4% vesting quarterly on a pro rata basis during the third twelve-month period. The Company agrees that it shall not eliminate the Short-Term Stock Incentive Plan, or Executive's eligibility thereunder, for the duration of the Employment Period.

 

(d) Long-Term Annual Stock Incentive Plan. During the Employment Period, Executive shall further be entitled to participate in the Company's Long-Term Annual Stock Incentive Plan ("LTIP"), based upon the terms and conditions set forth therein, as described in the Incentive Program attached as Exhibit A to this Agreement. The Company agrees that it shall not eliminate the Long-Term Stock Incentive Plan, or Executive's eligibility thereunder, for the duration of the Employment Period.

 

(e) Other Expenses: In addition to the compensation and benefits provided for above, the Company agrees to pay or to reimburse Executive during Executive’s employment for all reasonable, ordinary and necessary, properly documented, business expenses incurred in the performance of Executive’s services hereunder in accordance with Company policy in effect from time to time.

 

(f) Paid Time Off: Executive shall be allowed four (4) weeks of paid time off per calendar year, to be taken at times selected by Executive, as well as paid holidays, sick leave, and personal days in accordance with the Company's policies (collectively, “PTO”). Executive's accrued, unused PTO shall carry over from year to year and be paid out to Executive at time of separation of employment regardless of the reason.

 

(g) Fringe Benefits. In addition to Executive’s compensation provided by the foregoing, Executive shall be entitled to the benefits available generally to Company's senior executive level employees pursuant to the Company's programs which may now or, shall hereafter be in effect, or otherwise established by the Company, subject to the applicable terms and conditions of the benefit plans in effect at that time. Nothing herein shall affect the Company’s ability to modify, alter, terminate or otherwise change any benefit plan it has in effect at any given time, to the extent permitted by law. Notwithstanding, the Company agrees that it shall maintain and not modify, alter or terminate the Annual Cash Bonus, Short-Term Annual Stock Incentive Plan, Long-Term Annual Stock Incentive Plan and/or Executive's eligibility or vested benefits thereunder for the duration of the Employment Period, as such programs, plans and benefits are described in the Incentive Program attached as Exhibit A to this Agreement, subject to applicable laws and regulations.

 

 

5. Employment Period.

 

(a) Employment Period. The Employment Period shall commence on the Effective Date and shall continue until the third anniversary of the Effective Date (the “Initial Term”). The term of the Employment Period shall be automatically extended upon the same terms and conditions, for one additional month on the last day of every month following the Effective Date (a “Renewal Date") such that it has a continuous “rolling” three-year period, unless Executive or Company provides written notice to the other party, at least fifteen (15) days prior to the applicable Renewal Date, of its intention not to extend the term of this Agreement. Thus, at any point of non-renewal, the remaining term would be three (3) years. The period during which Executive is employed hereunder shall be considered the Employment Period.

 

(b) Termination by Executive without Good Reason. Notwithstanding the provisions of Section 5(a), Executive may terminate Executive's employment with Company and this Agreement at any time by giving the Company written notice at least thirty (30) days prior to the effective date of termination (the "Termination Date"). The Company, at its election, may require Executive to continue to perform Executive’s duties hereunder for the full thirty (30) day notice period, or may choose at any time during such 30-day notice period to accelerate the effective date of Executive’s resignation and end the employment relationship immediately (which for purposes of clarity shall not constitute a termination by the Company without Cause). If Executive chooses to terminate the employment relationship without Good Reason (as defined below), Executive shall only be entitled to receive upon such termination: (i) payment of Base Salary through the Termination Date, including through the notice period where termination has been accelerated, (ii) payment of any Annual Bonus for the prior calendar year, if not already paid; (iii) payment for any accrued but unused PTO, (iv) any right to continued benefits required by law (the foregoing (i) through (iv) shall be referred to herein as the “Accrued Obligations”). Payment of all Accrued Obligations owed herein shall be paid to Executive in lump sum, within seven (7) calendar days of the Termination Date or, if the Company accelerates the effective date of Executive's resignation, then such Accrued Obligations will be paid to Executive on such accelerated effective date.

 

(c) Termination by Executive for Good Reason. Executive may terminate Executive's employment with Company and this Agreement for Good Reason, which shall include: (A) a material reduction or diminution of Executive's authorities, duties, responsibilities or Base Salary, which is subject to the provisions of Section 4(a); (B) relocation of Executive's worksite to a location more than fifty (50) miles from Executive's then-current location; or (C) a material breach by Company of this Agreement where Executive has provided Company thirty (30) days' written notice and given the Company thirty (30) days' opportunity to cure, and the Company has failed to cure such material breach during that notice period; and further provided Executive terminates employment within ninety (90) days following the Company's failure to cure such material breach. A termination by Executive for Good Reason pursuant to this provision shall entitle Executive to payment of the Accrued Obligations, as well as Termination Compensation (as defined below) as if Executive had been terminated by the Company without Cause under Section (e)(1).

 

(d) Termination by Company for Cause.

 

(i) Notwithstanding the provisions of Section 5(a), at any time during the Employment Period, the Company may terminate Executive’s employment and this Agreement for Cause (defined below), with such termination taking effect upon written notice of the termination for Cause being provided to Executive. If Executive’s employment is terminated for Cause, Executive will not be entitled to and shall not receive any compensation or benefits of any type following the effective date of termination, other than the Accrued Obligations.

 

 

(ii) “Cause” shall be defined as termination where: (i) the Executive is convicted of fraud, theft or embezzlement against the Company or any subsidiary or affiliate thereof; (ii) the Executive is convicted of a felony or a crime involving moral turpitude; (iii) the Executive substantially breaches any material term of this Agreement and fails to cure such breach within 30 days after the receipt of written notice of such breach from the Company; or (iv) the Executive engages in gross negligence or willful misconduct that causes harm to the business and operations of the Company or a subsidiary or affiliate thereof.

 

(e) Termination by Company Without Cause. The Company may terminate Executive without Cause immediately by giving Executive written notice of such termination. Subject to the conditions set forth in Section 5(e)(ii), if Executive’s employment is terminated by the Company without Cause, in addition to the Accrued Obligations, Executive shall receive the following:

 

(i) a severance payment equivalent to three times (3x) the sum of Executive's Base Salary and the greater of either the (i) highest Annual Bonus the Executive received during the three calendar years prior to the Termination Date or (ii) the Executive’s target Annual Bonus in effect for the year in which termination occurs. Such severance payment shall be paid in accordance with the Company's regular payroll cycle, with the first payment commencing upon the pay date immediately following the effective date of the Release, if not timely revoked, as described in this Section 5(e), and on a continuing basis until the full amount has been paid;

 

(ii) if Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall provide for the payment of the Executive’s monthly COBRA payment for Executive and any of the Executive’s dependents that were participating in in such plan immediately prior to Executive’s termination (the “COBRA Subsidy”). The Company shall provide the COBRA Subsidy until the earliest of: (i) the twenty-four (24) month anniversary of the Termination Date, or (ii) the date Executive is no longer eligible to receive COBRA continuation coverage. If the Company cannot provide the COBRA Subsidy without violating applicable law or is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health insurance plans, then the Company shall pay the Executive an equivalent monthly cash payment such that Executive receives, on an after-tax basis, the same amount reimbursement for COBRA benefits for a period of eighteen (18) months; and

 

(iii) automatic and immediate vesting of any and all equity benefits including, without limitation, the Initial RSUs, and RSUs under the STIP and the LTIP (all within seven (7) calendar days of the effective date of the Release, as described in this Section 5(e)).

 

The above severance payments, COBRA Subsidy and vesting of all equity benefits under Sections 3(e)(i) through (iii) are collectively referred to as the “Termination Compensation”). Executive shall not be entitled to the Termination Compensation unless Executive executes a separation and release agreement which shall include a full waiver and general release of claims in favor of the Company, in substantially the form and substance attached hereto as Exhibit B (the “Release”), and such Release becoming effective, if not timely revoked under the terms thereof, within fifty-two (52) days following the Termination Date (the “Release Execution Period”). Such release shall not affect Executive’s right to a defense by legal counsel and indemnification, if any, for actions taken within the scope of Executive’s employment. If the Release Execution Period straddles two taxable years of Executive, then the Company shall pay the Termination Compensation starting in the second of such taxable years (with any missed severance payments being paid to the Executive on the first payroll date occurring in the second calendar year). The Parties hereto acknowledge that the Termination Compensation to be provided under Section 5(e)(i) is to be provided in consideration for the above-specified Release.

 

 

(f) Termination for Executive’s Permanent Disability. If the Executive becomes physically or mentally disabled as determined by a qualified, licensed medical physician mutually selected by the Company and Executive and such disability causes Executive to become unable for a period of more than five (5) consecutive months or for shorter periods aggregating at least five (5) months during any twelve (12) month period to perform the Executive’s duties hereunder on a substantially full-time basis, then the Company will deliver a written notice to Executive stating with specificity the reason for termination and the Executive’s employment will terminate within 30 days of the date of such notice, and this shall be considered a "disability" under this Agreement. Such termination shall not affect the Executive’s benefits under the Company’s disability insurance program, if any, then in effect. In the event Executive is terminated pursuant to this Section 5(f), Company shall pay to Executive all Accrued Obligations and Termination Compensation as if Executive had been terminated by the Company without Cause, subject to reduction by the amount of any disability insurance proceeds paid to or on behalf of Executive.

 

(g) Termination Due to Executive’s Death. This Agreement and Executive's employment hereunder will terminate immediately upon Executive’s death and the Company shall not have any further liability or obligation to Executive, Executive’s executors, heirs, assigns or any other person claiming under or through Executive’s estate, except that Executive’s estate shall receive payment for all Accrued Obligations and Termination Compensation as if Executive had been terminated by the Company without Cause.

 

(h) Termination Upon Change in Control. In the event of a “Change of Control” (defined herein) Executive may terminate Executive's employment and this Agreement within ninety (90) days of the effective date of the Change of Control upon thirty (30) days written notice. "Change in Control" shall mean (a) any sale, lease, exchange or other transfer (in one transaction or a series of transactions) of all or substantially all of the assets of the Company; or (b) any consolidation or merger or other business combination of the Company with any other entity where the shareholders of the Company, immediately prior to the consolidation or merger or other business combination would not, immediately after the consolidation or merger or other business combination, beneficially own, directly or indirectly, shares representing fifty percent (50%) of the combined voting power of all of the outstanding securities of the entity issuing cash or securities in the consolidation or merger or other business combination (or its ultimate parent corporation, if any). Upon a Change in Control, 100% of all unvested stock options and/or restricted shares held by Executive shall immediately vest (the "Accelerated Equity Vesting"). Further, upon a Change in Control, Executive shall be entitled to the Accrued Obligations and Termination Compensation as if Executive was terminated without Cause.

 

(i) Expiration of the Agreement. If the Agreement expires at the end of the Initial Term or any Renewal Term after proper advance notice by either Party of its/his intent not to renew, the Agreement shall expire and Executive shall receive only the Accrued Obligations as of the date of expiration.

 

(j) Continuing Obligations. The obligations imposed on Executive with respect to non-competition, non-solicitation, confidentiality, non-disclosure and assignment of rights to inventions or developments in this Agreement shall continue, notwithstanding the termination of the employment relationship between the Parties, as set forth in Section 7.

 

 

6. Company Property. All correspondence, records, documents, software, promotional materials, and other Company property, including all copies, which come into Executive’s possession by, through or in the course of Executive’s employment, regardless of the source and whether created by Executive, are the sole and exclusive property of the Company, and immediately upon the termination of Executive’s employment, or at any time the Company shall request, Executive shall return to the Company all such property of the Companies, without retaining any copies, summaries or excerpts of any kind or in any format whatsoever. Executive shall not destroy any of the Companies' property, such as by deleting electronic mail or other files, other than in the normal course of Executive’s employment. Executive further agrees that should Executive discover any Company property or Confidential Information in Executive’s possession after the return of such property has been requested, Executive agrees to return it promptly to Company without retaining copies, summaries or excerpts of any kind or in any format whatsoever.

 

7. Restrictive Covenants. Executive agrees and acknowledges that, in connection with Executive’s employment with the Company, Executive will be provided with access to and become familiar with confidential and proprietary information, trade secrets, and substantial relationships belonging to the Companies. Accordingly, in consideration of Executive’s employment with the Company pursuant to this Agreement, any payments made to the Executive as set forth in Section 5 (including the Accelerated Equity Vesting), and other good and valuable consideration, the receipt of which is hereby acknowledged, Executive agrees to the following restrictive covenants:

 

(a) Non-Competition. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s own behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) engage directly or indirectly in the Restricted Business anywhere in the Restricted Territory; or (b) directly or indirectly be or become an officer, director, stockholder, owner, affiliate, partner, member, investor, joint venture, employee, agent, representative, consultant, lender, advisor, manager of, for or to, or otherwise be or become associated with or acquire or hold (of record, beneficially or otherwise) any direct or indirect interest in, any individual or entity that engages directly or indirectly in the Restricted Business anywhere in the Restricted Territory; provided, however, that Executive may, without violating this Section 7(a), own, as a passive investment, shares of capital stock of a publicly-held corporation that engages in the Restricted Business if (i) such shares are actively traded on an established national securities market in the United States or any other foreign securities exchange, (ii) the number of shares of such corporation’s capital stock that are owned beneficially (directly or indirectly) by the Executive represents less than one percent (1%) of the total number of shares of such corporation’s capital stock outstanding, and (iii) Executive is not associated directly or indirectly with such corporation or with any affiliate of such corporation.

 

(b) Non-Solicitation of Customers and Other Business Relations. Executive agrees that during the Restricted Period, Executive shall not, either on Executive's behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) solicit, induce or attempt to solicit or induce any business, enterprise, or individual who, during the preceding two-year period, has a business relationship with the Companies (including any customer, licensee, supplier, manufacturer or vendor) (i) to cease doing business with the Companies, or (ii) to diminish or materially alter in a manner harmful to the Companies, such business, enterprise, or individual’s relationship with the Companies; or (iii) to purchase, contract for or receive any products or services from any such business relationship of Company (other than on behalf of the Companies) that engages in the Restricted Business anywhere within the Restricted Territory; provided, however, that nothing contained in this Section 7(b) shall prevent Executive from contracting with a third party who has or had a business relationship with Companies if such contracting does not adversely affect such third party’s business relationship with the Companies.

 

 

(c) Non-Hiring or Solicitation of Employees and Contractors. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s own behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) directly or indirectly hire or solicit for hire any employee, independent contractor, or consultant or any person who was an employee, independent contractor, or consultant of the Companies within the preceding twelve (12) months, or (b) directly or indirectly encourage, induce, attempt to induce, solicit or attempt to solicit (on Executive’s own behalf or on behalf of any other business, enterprise, or individual) any employee, independent contractor, or consultant to leave or curtail his or her employment or engagement with the Companies; provided, however, that notwithstanding the foregoing, this Section 7(c) shall not prevent Executive from undertaking general solicitations of employment not specifically targeted at employees, independent contractors, or consultants of the Companies (so long as Executive does not, directly or indirectly, specifically solicit for hire any such employee, independent contractor, or consultant).

 

(d) Definitions. For purposes of this Section 7:

 

(i) “Restricted Business” shall mean the operation of a technology-based motor vehicle dealer e-commerce platform and/or any other internet-based platform that allows dealers, consumers, and any other business, enterprise, or individual to buy, sell, trade, finance, and/or transport pre-owned cars, trucks, snowmobiles, watercraft, motorcycles, ATVs, UTVs, scooters, side-by-sides, sport bikes, cruisers, or other modes of transportation, as well as the sale, leasing, rental, financing, servicing (including supply of parts) and ancillary activities relating to new and used motorcycles, ATVs, UTVs, scooters, side-by-sides, sport bikes, two- and three-wheeled cruisers, powered watercraft, and any other business engaged in by Companies during Executive's employment therewith.

 

(ii) "Restricted Period" shall mean the period while Executive is in the employ of the Company and/or any of its affiliates and for a three (3) year period following the end of such employment for any reason, provided, however, that in the event of any breach by Executive of this Section 7, the Restricted Period shall be automatically extended by a number of days equal to the total number of days in the period from the date on which such breach shall have first occurred through the date as of which such breach shall have been fully cured.

 

(iii) “Restricted Territory” means Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, and each territory of the United States, including Washington, D.C.

 

(e) Reasonableness of Restrictive Covenants. The Parties agree that the relevant public policy aspects of post-employment restrictive covenants have been discussed, and that every effort has been made to limit the restrictions placed upon Executive to those that are reasonable and necessary to protect the Companies' legitimate interests. Executive acknowledges that, based upon Executive’s education, experience, and training, the restrictions set forth in this Section 7 will not prevent Executive from earning a livelihood and supporting himself and Executive’s family during the relevant time period. Executive further acknowledges that, because the Companies market their products and services throughout the Restricted Territory, a more narrow geographic limitation on the restrictive covenants set forth above would not adequately protect the Companies' legitimate business interests.

 

 

(f) Modification. The Parties agree that if any restriction set forth in this Section 7 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or geographic area as to which it may be enforceable.

 

(g) Independence of Obligations. The Parties agree that the restrictive covenants set forth in this Section 7 are not intended to, and shall not, supersede any restrictive covenants contained in any other agreement (including, but not limited to the Merger Agreement or other agreement executed in connection with the Transaction, or if applicable, any stock or stock-linked award agreement, or otherwise), and that the provisions of Section 7 (along with the Confidentiality provisions of Section 8 below) shall be construed as separate and distinct obligations of Executive which shall expressly survive the termination of Executive's employment with the Company.

 

(h) Injunctive Relief. The Parties agree that the restrictions contained in this Section 7 are necessary for the protection of the business and goodwill of the Companies and are considered by Executive to be reasonable for such purposes. Executive agrees that any material breach of Section 7 will result in irreparable harm and damage to the Companies that cannot be adequately compensated by a monetary award. Accordingly, it is expressly agreed that in addition to all other remedies available at law or in equity (including, without limitation, money damages from Executive), the Company and/or such affiliate shall be entitled to a temporary restraining order, preliminary injunction or such other form of injunctive or equitable relief as may be used by any court of competent jurisdiction to restrain or enjoin Executive from breaching any such covenant or provision or to specifically enforce the provisions hereof, without the need to post any bond or other security.

 

8. Protection of Confidential Information.

 

(a) Executive agrees that all information, whether or not in writing, relating to the business, technical or financial affairs of the Companies and that is generally understood in the industry as being confidential and/or proprietary information, is the exclusive property of the Companies. Executive agrees to hold in a fiduciary capacity for the sole benefit of the Companies all secret, confidential and/or proprietary information, knowledge, and data, including trade secrets, relating to the Companies obtained during Executive’s employment with the Company or any of its predecessors or affiliates, including but not limited to any trade secrets, confidential or secret designs, website technologies, content, processes, formulae, plans, manuals, devices, machines, know-how, methods, compositions, ideas, improvements, financial and marketing information, costs, pricing, sales, sales volume, salaries, methods and proposals, customer and prospective customer lists, customer identities, customer volume, or customer contact information, identity of key personnel in the employ of customers and prospective customers, amount or kind of customer’s purchases from the Companies, manufacturer lists, manufacturer identities, manufacturer volume, or manufacturer contact information, identity of key personnel in the employ of manufacturers, amount or kind of the Companies' purchases from manufacturers, system documentation, hardware, engineering and configuration information, computer programs, source and object codes (whether or not patented, patentable, copyrighted or copyrightable), related software development information, inventions or other confidential or proprietary information belonging to the Companies or directly or indirectly relating to the Companies' business and affairs (“Confidential Information”). Confidential Information shall not include information (i) that has entered the public domain through no fault of Executive, (ii) rightfully known by the receiving person without obligation of confidentiality to any third party prior to receipt of same from the disclosing person, (iii) independently developed by the receiving person without using or referring to any Confidential Information of the Company, and (iv) generally made available to the public by the disclosing person without obligation of confidentiality. Executive agrees that Executive will not at any time, either during the Employment Period or the Confidentiality Period (as defined below), disclose to anyone any Confidential Information, or utilize such Confidential Information for Executive’s own benefit, or for the benefit of third parties without written approval by an officer of the Company. For purposes of this section, the “Confidentiality Period” means for the period of three (3) years after the Termination Date. Executive further agrees that all memoranda, notes, records, data, schematics, sketches, computer programs, prototypes, or written, photographic, magnetic or other documents or tangible objects compiled by Executive or made available to Executive during the Employment Period concerning the business of the Companies and/or their respective clients, including any copies of such materials, shall be the property of the Companies and shall be delivered to the Company on the termination of Executive’s employment, or at any other time upon request of the Company.

 

 

(b) In the event Executive is questioned by anyone not employed by the Company or by an employee of or a consultant to the Company not authorized to receive such information, in regard to any Confidential Information or any other secret or confidential work of the Companies, or concerning any fact or circumstance relating thereto, or in the event that Executive becomes aware of the unauthorized use of Confidential Information by any party, whether competitive with the Company or not, Executive will promptly notify an officer of the Company.

 

(c) Court-Ordered Disclosure. In the event that, at any time during Executive’s employment with the Company or at any time thereafter, Executive receives a request to disclose any Confidential Information under the terms of a subpoena or order issued by a court or by a governmental body, Executive agrees to notify the Company immediately of the existence, terms, and circumstances surrounding such request, to consult with the Company on the advisability of taking legally available steps to resist or narrow such request; and, if disclosure of such Confidential Information is required to prevent Executive from being held in contempt or subject to other penalty, to furnish only such portion of the Confidential Information as, in the written opinion of counsel satisfactory to the Company, Executive is legally compelled to disclose, and to exercise Executive’s reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.

 

(d) Non-Interference with Governmental Agency Rights. The provisions of this Agreement and of any other agreement between Executive and the Company regarding confidentiality and non-disclosure are not intended to interfere with, or waive, any right or obligation (if any) to file a charge, cooperate, testify, report, or participate in an investigation with any appropriate federal, state or local governmental agency, including the Securities and Exchange Commission ("SEC"), the Equal Employment Opportunity Commission ("EEOC"), the Occupational Safety and Health Administration ("OSHA"), the National Labor Relations Board ("NLRB"), or any other federal, state or local government agency charged with enforcement of any law, rule, or regulation applicable to Company's business ("Governmental Agency"); including the ability to communicate with such agency; the reporting of possible violations of any law, rule or regulation; making other disclosures that are protected under whistleblower provisions of any law, rule or regulation; or the receiving of an award for information provided to any Governmental Agency.

 

(e) Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, Executive acknowledges that Executive shall not have criminal or civil liability under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the trade secret to Executive’s attorney and may use the trade secret information in the court proceeding, if Executive (X) files any document containing the trade secret under seal and (Y) does not disclose the trade secret, except pursuant to court order.

 

9. Intellectual Property.

 

(a) Disclosure of Inventions. Executive will promptly disclose in confidence to the Company all inventions, improvements, processes, products, designs, original works of authorship, formulas, processes, compositions of matter, computer software programs, Internet products and services, e-commerce products and services, e-entertainment products and services, databases, mask works, trade secrets, product improvements, product ideas, new products, discoveries, methods, software, uniform resource locators or proposed uniform resource locators (“URLs”), domain names or proposed domain names, any trade names, trademarks or slogans, which may or may not be subject to or able to be patented, copyrighted, registered, or otherwise protected by law (the “Inventions”) that Executive makes, conceives or first reduces to practice or creates, either alone or jointly with others, during the period of Executive’s employment with the Company, in the course of Executive’s employment, and whether or not such Inventions are patentable, copyrightable or able to be protected as trade secrets, or otherwise able to be registered or protected by law.

 

 

(b) Assignment of Company Inventions; Work for Hire. Executive agrees that all Inventions that (i) are developed using equipment, supplies, facilities or trade secrets of the Companies, (ii) result from work performed by Executive for the Companies, or (iii) relate to the Companies' business or current or anticipated research and development (the “Company Inventions”), will be the sole and exclusive property of the Company and are hereby irrevocably assigned by Executive to the Company from the moment of their creation and fixation in tangible media. Executive further acknowledges and agrees that any copyrightable works prepared by Executive within the course of Executive’s employment are “works for hire” under the Copyright Act and that the Company will be considered the author and owner of such copyrightable works.

 

(c) Assignment of Other Rights. In addition to the foregoing assignment of Company Inventions to the Company, Executive hereby irrevocably transfers and assigns to the Company: (i) all worldwide patents, patent applications, copyrights, mask works, trade secrets and other intellectual property rights in any Company Invention; and (ii) any and all “Moral Rights” (as defined below) that Executive may have in or with respect to any Company Invention. Executive also hereby forever waives and agrees never to assert any and all Moral Rights Executive may have in or with respect to any Company Invention, even after termination of Executive’s work on behalf of the Companies. “Moral Rights” means any rights to claim authorship of an Company Invention, to object to or prevent the modification of any Company Invention, or to withdraw from circulation or control the publication or distribution of any Company Invention, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”

 

(d) Assistance. Executive agrees to reasonably cooperate with the Company, at the Company’s sole cost and expense, to obtain and enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company Inventions in any and all countries. At the Company’s reasonably request, Executive will execute documents necessary for use in obtaining or enforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. Executive’s obligations under this section will continue for a period of twelve (12) months beyond the termination of Executive’s employment with the Company, provided that the Company will compensate Executive at a reasonable rate after such termination for time or expenses actually spent by Executive at the Company’s request on such assistance. Executive appoints the Secretary of the Company as Executive’s attorney-in-fact to execute documents on Executive’s behalf sole for the limited purpose set forth in this Section 9(d).

 

10. Publicity. Neither Party shall issue, without consent of the other Party, any press release or make any public announcement with respect to this Agreement or the employment relationship between them, or the ending of such relationship.

 

 

11. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their heirs, personal representatives, successors and assigns. Executive acknowledges and agrees that the Company may, in its sole discretion, assign this Agreement (i) to an affiliate of the Company at any time, or (ii) in the event the Company is acquired, is a non-surviving party in a merger, or transfers substantially all of its assets, to the transferee or surviving company, in each case without being required to obtain Executive’s consent. The Parties understand that the obligations of Executive are personal and may not be assigned by Executive.

 

12. Entire Agreement. This Agreement and the Exhibits attached hereto contains the entire understanding of Executive and the Company with respect to employment of Executive and supersedes any and all prior understandings, written or oral, regarding the terms or conditions of Executive's employment with the Company. Notwithstanding the foregoing, except for the provisions of the Incentive Program attached hereto as Exhibit A, the provisions of this Agreement are not intended to, and shall not, supersede any restrictive covenants contained in any other agreements (including, but not limited to, any obligations related to non-competition, non-solicitation, confidentiality, non-disparagement, and/or assignment of inventions in an agreement entered into between Executive and the Company or any related or affiliated entity), and the provisions of this Agreement and of any other such agreements shall be construed as separate and distinct obligations of Executive. This Agreement may not be amended, waived, discharged or terminated orally, but only by an instrument in writing, specifically identified as an amendment to this Agreement, and signed by both Parties. By entering into this Agreement, Executive certifies and acknowledges that Executive has carefully read all of the provisions of this Agreement and that Executive voluntarily and knowingly enters into this Agreement.

 

13. Severability; Modification. If any portion, provision, section or subsection of this Agreement is determined to be unreasonable or unenforceable, for any reason whatsoever, the parties agree that such portion, provision, section or subsection may be severed, modified or narrowed, either by a court or the Company, so as to provide the maximum legally enforceable protection of the Companies' legitimate business interests, without negating or impairing any other restrictions or agreements set forth herein. If any portion, provision, section or subsection of this Agreement is held to be invalid, illegal, or unenforceable, it shall not affect the other provisions of this Agreement, which shall remain in effect. This Agreement shall be construed in all respects as if such invalid, illegal or unenforceable provision was omitted..

 

14. Tax Consequences. Except as otherwise specifically provided in this Agreement, the Company will have no obligation to any person entitled to the benefits of this Agreement with respect to any tax obligation any such person incurs as a result of or attributable to this Agreement, including all supplemental agreements and employee benefits plans incorporated by reference therein, or arising from any payments made or to be made under this Agreement or thereunder.

 

 

15. Golden Parachute Excise Tax.

 

(a) Parachute Payments. If any payment or benefit Executive would receive pursuant to this Agreement or pursuant to any other agreement with the Company following a change in the ownership or effective control of the Company or change in the ownership of a substantial portion of the assets of the Company (which change, as further defined in Section 280G of the Code and regulations promulgated thereunder (“Section 280G”), is referred to herein as a “Change in Control” from the Company or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G, and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: (1) cash payments, in the following order: (a) first, severance payments under this Agreement, (b) second, severance payments under any other agreement with the Company and (c) third, any other cash payments under any of the foregoing agreements; (2) cancellation of the acceleration of vesting of stock options, restricted stock, restricted stock units or any other awards that vest based on attainment of performance measures; (3) cancellation of the acceleration of vesting of stock options, restricted stock and restricted stock units or any other awards that vest only based on Executive’s continued service to the Company, taking the last ones scheduled to vest (absent the acceleration) first, and (4) other non-cash forms of benefits.

 

(b) Calculations. The foregoing calculations will be performed at the expense of the Company by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company. The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within thirty (30) calendar days after the Change in Control, the date of termination, if applicable, and any such other time or times as may be reasonably requested by the Company or Executive. If the Accounting Firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment.  Any good faith determinations of the Accounting Firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

 

16. Section 409A.

 

(a) This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and Treasury guidance promulgated thereunder (“Section 409A of the Code”). If the Company determines in good faith that any provision of this Agreement would cause Executive to incur an additional tax, penalty, or interest under Section 409A of the Code, the Company and Executive shall use reasonable efforts to reform such provision, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code or causing the imposition of such additional tax, penalty, or interest under Section 409A of the Code. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to Executive under this Agreement.

 

(b) For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event may Executive, directly or indirectly, designate the calendar year of payment.

 

 

(c) With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, Executive, as specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

 

(d) “Termination of employment,” “resignation,” or words of similar import, as used in this Agreement means, for purposes of any payments under this Agreement that are payments of deferred compensation subject to Section 409A of the Code, Executive’s “separation from service” as defined in Section 409A of the Code.

 

(e) To the extent that Section 409A of the Code would cause an adverse tax consequence to the Executive upon accelerating any payment of Termination Compensation pursuant to Section 5(h) upon a Change in Control (“Section 409A Payments”), a Change in Control shall not be deemed to occur with respect to such Section 409A Payments unless the Change in Control qualifies as a “Change in the Ownership or Effective Control of a Corporation or in the Ownership of a Substantial Portion of the Assets of a Corporation” under Treasury Department Regulation 1.409A-3(i)(5), as revised from time to time in either subsequent regulations or other guidance and such Section 409A Payments shall be made at the time such payments would have otherwise been made absent the Change in Control.

 

(f) Neither the Company nor Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A.

 

(g) If a payment obligation under this Agreement arises on account of Executive’s separation from service while Executive is a “specified employee” (as defined under Section 409A of the Code and determined in good faith by the Company), any payment of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be paid within 15 days after the end of the six-month period beginning on the date of such separation from service or, if earlier, within 15 days after the appointment of the personal representative or executor of Executive’s estate following Executive’s death.

 

17. Governing Law. The law, including the statutes of limitation, of the State of Delaware shall govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to its or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.

 

 

18. Notices. Any notice provided for in this Agreement shall be provided in writing. Notices shall be effective from the date of service, if served personally on the Party to whom notice is to be given, or on the second day after mailing, if mailed by first class mail, postage prepaid. Notices shall be properly addressed to the Parties at their respective addresses or to such other address as either Party may later specify by notice to the other.

 

19. Dispute Resolution. The Parties agree that, except as otherwise provided in this Agreement, any controversy, claim or dispute arising out of or relating to this Agreement or the breach thereof, or arising out of or relating to the employment of Executive, or the termination thereof, including any statutory or common law claims under federal, state, or local law, including all laws prohibiting discrimination in the workplace, shall first be submitted to mediation conducted by the Judicial Arbitration and Mediation Service (JAMS). The Parties agree to attempt in good faith to resolve any such dispute in the course of such mediation. If any such dispute is not resolved by mediation, the Parties agree that such dispute shall be submitted to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, or any federal court of competent jurisdiction sitting in the State of Delaware, and the Parties hereby waive any and all defenses and/or objections to jurisdiction and venue in such courts. Notwithstanding anything herein to the contrary, the Parties further acknowledge and agree that, due to the nature of the confidential information, trade secrets, and intellectual property belonging to the Companies to which Executive has or will be given access, and the likelihood of significant harm that the Company would suffer in the event that such information was disclosed to third parties, nothing in this paragraph shall preclude the Company from immediately going to court to seek injunctive relief to prevent Executive from violating the obligations established in Sections 7, 8 or 9 of this Agreement. Each of the parties irrevocably agrees to waive any and all rights they may have to trial by jury in any action, proceeding or claim of any nature relating to this Agreement, or the enforcement of this Agreement, and acknowledge that such waiver is knowing and voluntary. In the event of any dispute regarding the interpretation or enforcement, or otherwise arising out of this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney's fees and costs, including through appeal.

 

20. Indemnification. The Company shall indemnify and hold harmless Executive for any liability to any third-party incurred by reason of any act or omission performed by Executive while acting in good faith on behalf of the Company and within the scope of the authority of Executive pursuant to this Agreement and under the rules and policies of the Company, except that Executive must have in good faith believed that such action was in the best interest of the Company and such course of action or inaction must not have constituted gross negligence, fraud, willful misconduct, or breach of a fiduciary duty.

 

21. Miscellaneous.

 

(a) No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.

 

(b) The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.

 

 

(c) The language in all parts of this Agreement will be construed, in all cases, according to its fair meaning, and not for or against either Party hereto. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party will not be employed in the interpretation of this Agreement.

 

(d) Capitalized terms used in this Agreement have the meanings ascribed to them by definition in this Agreement; or if not expressly defined in this Agreement, to the meanings ascribed in the Merger Agreement.

 

(e) The obligations of Company under this Agreement, including its obligation to pay the compensation provided for in this Agreement, are contingent upon Executive’s performance of Executive’s obligations under this Agreement.

 

(f) This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement.

 

IN WITNESS WHEREOF, each of the Parties hereto has caused this Executive Employment Agreement to be duly executed, by its authorized officers or individually, on the Effective Date.

 

	RumbleOn, Inc.
	By:	/s/ Marshall Chesrown
		Name: Marshall Chesrown
		Title:   Chief Executive Officer
	/s/ Peter Levy
	Peter Levy

 

 

Exhibit A to Executive Employment Agreement

 

[See Executive Incentive Plan included in definitive proxy statement filed on July 1, 2021.]

 

 

Exhibit B to Executive Employment Agreement

 

Release Agreement

 

This Release Agreement (this “Release”) is executed pursuant to Section 5(e)(iii) of that certain Executive Employment Agreement, dated as of August 31, 2021 (the “Employment Agreement”), between RumbleOn, Inc., a Nevada corporation (the “Company”), and Peter Levy (“Executive”). All terms capitalized and not defined herein shall have the meaning given in the Employment Agreement. Executive acknowledges that the Termination Compensation under this Release does not, in any way, extend the period of employment or continuous service beyond the last day of employment or confer any other rights or benefits upon Executive other than what may be set forth expressly herein.

 

1. Full and Adequate Consideration. Executive acknowledges and agrees that the Termination Compensation shall constitute full and adequate consideration that Executive would not otherwise be entitled but for the promises and obligations set forth in this Release, including Executive's waiver and general release of claims against Company, cooperation during any transitional period, and adherence to other post-termination obligations. Executive acknowledges that Company has no further obligation to Executive, including to pay any additional amounts of money or benefits, other than as set forth below:

 

(a) Severance Payment. In accordance with and pursuant to Section 5(e)(i) of the Employment Agreement, if Executive is terminated by Company (other than with Cause under Section 5(d), by Executive without Good Reason under Section 5(b), or upon Expiration of the Agreement under Section 5(i)), then in addition to the Accrued Obligations, Executive shall receive a severance payment equivalent to three times (3x) the sum of Executive's Base Salary and the greater of either the (i) highest Annual Bonus the Executive received during the three calendar years prior to the Termination Date or (ii) the Executive’s target Annual Bonus in effect for the year in which termination occurs. Such severance payment shall be paid in accordance with the Company's regular payroll cycle, with the first payment commencing upon the pay date immediately following the effective date of this Release, if not timely revoked under the terms hereof, within fifty-two (52) days following the Termination Date (the “Release Execution Period”). If the Release Execution Period straddles two taxable years of Executive, then the Company shall pay the Termination Compensation starting in the second of such taxable years (with any missed severance payments being paid to Executive on the first payroll date occurring in the second calendar year).

 

(b) COBRA Subsidy. If Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall provide for the payment of the Executive’s monthly COBRA payment for Executive and any of the Executive’s dependents that were participating in in such plan immediately prior to Executive’s termination (the “COBRA Subsidy”). The Company shall provide the COBRA Subsidy until the earliest of: (i) the twenty-four (24) month anniversary of the Termination Date, or (ii) the date Executive is no longer eligible to receive COBRA continuation coverage. If the Company cannot provide the COBRA Subsidy without violating applicable law or is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health insurance plans, then the Company shall pay the Executive an equivalent monthly cash payment such that Executive receives, on an after-tax basis, the same amount reimbursement for COBRA benefits for a period of eighteen (18) months.

 

 

Exhibit B to Executive Employment Agreement

 

(c) Equity Benefits. Executive shall have automatic and immediate vesting of any and all equity benefits including, without limitation, the Initial RSUs, and RSUs under the STIP and the LTIP all (within seven (7) calendar days of the effective date of this Release, as described in Section 5(e) of the Employment Agreement).

 

2. Waiver and Release of Claims.

 

(a) General Release. Executive, for and on behalf of himself and each of his heirs, administrators, executors, personal representatives, beneficiaries, and assigns, to the maximum extent permitted by law, does hereby release and forever discharge the “Company Releasees” hereunder, consisting of RumbleOn, Inc., and each of its past, present and future parents, subsidiaries, divisions, affiliates, predecessors, successors, partners, associates, heirs, assigns, agents, managers, members, directors, officers, employees, representatives, lawyers, insurers, owners, principals, shareholders, employee benefit plans and fiduciaries, administrators, transferees and assigns and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called “Claims”), which Executive now has or may hereafter have against the Company Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof. However, the parties expressly acknowledge that this waiver and release shall not affect Executive's right to a defense by legal counsel and indemnification to the extent such rights otherwise exist under the terms of the Employment Agreement, including Section 20 thereof. The Claims released by Executive in this Section 2(a) include, without limiting the generality of the foregoing, any Claims in any way arising out of, based upon, or related to:

 

(i) Executive’s employment by or service to Company or any of the other Company Releasees, or the termination thereof;

 

(ii) any alleged breach of the Employment Agreement or Company’s employee handbook, policies or procedures; or

 

(iii) any alleged tort, including but not limited to misrepresentation, defamation, interference with business relationships, intentional or negligent infliction of emotional distress, negligence or wrongful discharge.

 

Notwithstanding the foregoing, this waiver and release shall not apply to or affect Executive’s rights under this Agreement including, without limitation, any claim against Company and/or the Company Releasees for breach or default hereunder.

 

(b) Statutory Claims. Executive further knowingly and voluntarily releases and discharges the Company Releasees, collectively, separately and severally, for any and all Claims based upon any alleged violation of any federal, state or local statute, ordinance or regulation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended 1991, 42 U.S.C. § 1981; the Americans with Disabilities Act ("ADA"); the Employee Retirement Income Security Act ("ERISA"); the Consolidated Omnibus Budget Reconciliation Act ("COBRA"); the Occupational Safety and Health Act ("OSHA"); the Fair Labor Standards Act ("FLSA"); the Family and Medical Leave Act ("FMLA"); the Equal Pay Act ("EPA"); the Worker Adjustment and Retraining Notification Act ("WARN"); the Immigration Reform and Control Act ("IRCA"); the Sarbanes-Oxley Act; the Federal False Claims Act; the Internal Revenue Code; the National Labor Relations Act; and any and all other local, state and/or federal human or civil rights, wage-hour, pension or labor laws, rules, regulations and/or ordinances which relate to employment, discrimination, retaliation, or payment of wages or other compensation or otherwise.

 

 

Exhibit B to Executive Employment Agreement

 

(c) Release of Claims Under the ADEA. In addition to the foregoing, Executive hereby knowingly and voluntarily releases and discharges the Company Releasees, collectively, separately and severally, from and for any and all Claims arising under the Age Discrimination in Employment Act ("ADEA") and/or the Older Workers Benefit Protection Act ("OWBPA"), which Executive and/or his heirs, administrators, executors, personal representatives, beneficiaries, and assigns may have or claim to have against any of the Company Releasees (such release and waiver referred to as the “ADEA Waiver”). Notwithstanding any other provision or section of this Agreement, Executive does not hereby waive any rights or claims under the ADEA/OWBPA that may arise after the time Executive signs this Agreement.

 

(d) Consideration Period For ADEA Waiver. Executive hereby acknowledges that Executive has been given a period of at least twenty-one (21) days (or, to the extent required by applicable law, forty-five (45) days) to consider the terms of this Release, that Executive is advised to consult with an attorney prior to executing this Release, and that Executive has received good and valuable consideration, to which Executive is otherwise not entitled, in exchange for Executive's execution of this Release. Executive and Company acknowledge and agree that any revisions made to this Release after it was initially delivered to Executive were either not material or were requested by Executive, and expressly agree that such changes do not re-start the consideration period described in the preceding sentence.

 

3. Non-Interference with Governmental Agency Rights. Executive understands that the terms of this Release, including the provisions regarding waiver and release, confidentiality, and non-disparagement, are not intended to interfere with, or waive, any right or obligation (if any) to file a charge, cooperate, testify, report, or participate in an investigation with any appropriate federal, state or local governmental agency, including the Securities and Exchange Commission ("SEC"), the Equal Employment Opportunity Commission ("EEOC"), the Occupational Safety and Health Administration ("OSHA"), the National Labor Relations Board ("NLRB"), or any other federal, state or local government agency charged with enforcement of any law, rule, or regulation applicable to Company's business ("Governmental Agency"); including the ability to communicate with such agency; the reporting of possible violations of any law, rule or regulation; making other disclosures that are protected under whistleblower provisions of any law, rule or regulation; or the receiving of an award for information provided to any Governmental Agency. However, Executive acknowledges and understands that by signing this Release, Executive is fully waiving and releasing the right to receive or accept any individual remedy or relief, monetary or otherwise, obtained through the efforts of any such agency on Executive's behalf or on behalf of a class of individuals through which action or proceeding Executive might otherwise have a right or benefit.

 

4. Post-Termination Survival of Restrictive Covenants. Executive acknowledges and understands, that despite Executive's termination of employment, the obligations set forth in Section 7 (Restrictive Covenants) and Section 8 (Confidentiality), and the rights and remedies for breach and enforcement thereof in the Employment Agreement, shall remain in full force and effect for the durations expressly stated therein, if not unlimited, and as otherwise specified in this Release, regardless of the circumstances of Executive’s termination.

 

 

Exhibit B to Executive Employment Agreement

 

5. Representations by Executive.

 

(a) No Pending Disputes. Executive represents and warrants that no litigation, dispute or other proceeding has been filed or is pending by Executive against Company or any other Company Releasee, and that Executive has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations, or causes of action released herein.

 

(b) No Pending Obligations Owed by Company. Executive represents and warrants that Executive has received all wages and compensation owed through the date Executive signs this Release and that Executive has received all other amounts due from Company through the date Executive signs this Release, including, but not limited to, all bonuses, commissions, paid time off, reimbursements, and any other benefits to which Executive may be entitled from any of the Company Releasees, except for the Termination Compensation provided under Section 5(e) of the Employment Agreement, which will be paid as contemplated therein, and any vested benefits under any Company Releasee’s employee benefit plans which shall be governed by the terms of the applicable plan document and award agreements. Executive further represents and warrants that Executive has been provided with all leave or other accommodations (including under the Family and Medical Leave Act and/or the Americans with Disabilities Act) to which Executive may have been entitled, if any, and that Executive has not suffered any workplace illness or injury other than any illness or injury which Executive has already advised Company in writing, if any.

 

(c) Return of Property/No Improper Disclosure. Executive represents and warrants that Executive has returned all Company property as of the date Executive signs this Release. Executive represents and warrants that Executive has not disclosed any Confidential Information (as defined in the Employment Agreement) except as specifically authorized in the performance of Executive's duties for Company or as otherwise permitted in the Employment Agreement.

 

6. Non-Admission of Liability. This Release shall not be construed as an admission of liability by Company or any other Company Releasee, or as an admission that Company or other any Company Releasee has acted in any way wrongfully towards Executive.

 

7. Confidentiality of Release. Executive acknowledges and agrees that Executive will not, unless required by law or as otherwise permitted by Company, disclose to others any information regarding the terms of this Release, the benefits being paid under it or the fact of its payment (which are deemed confidential), except that Executive may disclose this information to Executive's attorney, accountant or other professional advisor to whom Executive must make the disclosure in order to receive professional services and Executive may disclose or file this Release and the Employment Agreement to the extent required to be filed in any legal proceeding or arbitration brought by or against the Executive in connection with this Release or the Employment Agreement. However, Executive acknowledges that Executive must instruct the parties who have been disclosed such information, as applicable, about the confidential nature of this Agreement and their obligation to maintain the confidentiality of this information, and shall be responsible for any breach of such obligation by such parties.

 

 

Exhibit B to Executive Employment Agreement

 

8. Binding Release. This Release is binding on the parties hereto and their respective successors, heirs, administrators, executors, and assigns. The rights and benefits of Executive under this Agreement being personal to the Executive, they may not be assigned by Executive without the prior written consent of Company; provided, however, Executive expressly acknowledges and agrees that the provisions of this Release, and any and all terms which are expressly incorporated herein, are enforceable against Executive by Company's affiliates, successors and/or assigns or any other Company Releasee, which shall be deemed third party beneficiaries hereof.

 

9. Entire Understanding. This Release constitutes the sole and entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous understandings or agreements between the parties, whether oral or written, on such subject matter, except as expressly provided herein; provided, that, the provisions of the Merger Agreement or other agreement executed in connection with the Transaction, or if applicable, any stock or stock-linked award agreement, or otherwise, shall remain in full force and effect, including but not limited to the restrictive covenants and other obligations thereof.

 

10. Severability. In case any one or more of the provisions in this Release, or of those surviving post-termination provisions of the Employment Agreement incorporated herein, or a portion thereof, shall be held to be invalid, illegal or unenforceable for any reason, (except for the waiver/release provision of Section 2 above), the invalidity, illegality or unenforceability of any provisions or portions shall not affect any other provision or portion hereof; this Release shall be construed as if the invalid, illegal or unenforceable provision or portion had never been contained in this Agreement.

 

11. Governing Law; Venue. The law, including the statutes of limitation, of the State of Delaware shall govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to its or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.

 

12. Dispute Resolution. The Parties agree that, except as otherwise provided in this Release, any controversy, claim or dispute arising out of or relating to this Release or the breach thereof, shall first be submitted to mediation conducted by the Judicial Arbitration and Mediation Service (JAMS). The Parties agree to attempt in good faith to resolve any such dispute in the course of such mediation. If any such dispute is not resolved by mediation, the Parties agree that such dispute shall be submitted to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, or any federal court of competent jurisdiction sitting in the State of Delaware, and the Parties hereby waive any and all defenses and/or objections to jurisdiction and venue in such courts. Each of the parties irrevocably agrees to waive any and all rights they may have to trial by jury in any action, proceeding or claim of any nature relating to this Release, or the enforcement of this Release, and acknowledge that such waiver is knowing and voluntary. In the event of any dispute regarding the interpretation or enforcement, or otherwise arising out of this Release, the prevailing party shall be entitled to an award of its reasonable attorney's fees and costs, including through appeal.

 

13. Revocation Period. Executive has the right to revoke this Release within seven (7) calendar days after Executive’s execution of this Release by giving notice in writing of such revocation to: [●]. No revocation shall be timely or effective unless actually received by Company within the seven day revocation period. In the event that Executive revokes this Release prior to the Effective Date, this Release, and the promises and obligations contained therein, shall automatically and retroactively be deemed null and void and Company's and Executive’s rights, remedies, and obligations to each other shall be reinstated as if this Release had never been executed or delivered including, without limitation, that Company will not be obligated to provide Executive the consideration referenced in Section 1 of this Release.

 

14. Effective Date. This Release shall become effective on the eighth (8^th) calendar day following execution by Executive, where not timely revoked.

 

[SIGNATURES ON FOLLOWING PAGE]

 

 

Exhibit B to Executive Employment Agreement

 

IN WITNESS WHEREOF, the parties freely and voluntarily execute this Release as follows:

 

RumbleOn, Inc.		Executive
By:
Title:

 

 

 

 

Exhibit 10.7

 

EXECUTIVE EMPLOYMENT AGREEMENT

(RUMBLEON, INC.)

 

This EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) dated as of August 31, 2021, is entered by and between RumbleOn, Inc., a Nevada corporation (the “Company”), and Beverley Rath (“Executive”), and is effective as of August 31, 2021. Each of the Company and Executive are a “Party,” and collectively, they are the “Parties.”

 

WHEREAS, the Company desires to employ and/or continue to employ Executive, and Executive desires to be employed and/or continue to be employed by the Company, subject to the terms and conditions set forth in this Agreement;

 

NOW THEREFORE, in consideration of the mutual covenants and mutual benefits set forth herein and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Company and Executive agree as follows:

 

1. Representations and Warranties. Executive represents and warrants to the Company that Executive is not bound by any restrictive covenants or other obligations or commitments of any kind that would in any way prevent, restrict, hinder or interfere with Executive’s acceptance of employment under the terms and conditions set forth herein or the performance of all duties and services hereunder to the fullest extent of Executive’s ability and knowledge. Executive understands and acknowledges that Executive is not expected or permitted to use or disclose confidential information belonging to any prior employer in the course of performing Executive’s duties for the Company.

 

2. Term of Employment; Contingencies. As of the Effective Date, the Company will employ Executive and Executive accepts employment by the Company on the terms and conditions herein contained for a period (the “Employment Period”) provided in Section 5.

 

3. Duties and Functions.

 

(a) Executive shall be employed as Interim Chief Financial Officer & Controller of the Company and shall oversee, direct and manage the financial affairs of the Company and engage in other responsibilities inherent within the position of Interim Chief Financial Officer & Controller. Executive shall report directly to the Chief Executive Officer, Marshall Chesrown.

 

(b) Executive agrees to undertake the duties and responsibilities inherent in the position of Interim Chief Financial Officer & Controller, including the responsibilities commensurate with, and customary for, that position, and which may encompass different or additional duties as may, from time to time, reasonably be assigned by the Chief Executive Officer. Executive agrees to abide by the Company’s written policies and procedures in the administration of Executive’s duties.

 

(c) During the Employment Period, Executive will devote Executive’s full time and efforts to the business of the Company and will not engage in consulting or other business activity (whether full time or part time) that would create a conflict of interest with the Company.

 

 

(d) It shall not be a violation of this Agreement for Executive to: serve on civic or charitable boards or committees; deliver lectures, fulfill speaking engagements or teach at educational institutions; or engage in personal investment activities, so long as such activities do not materially or substantially interfere with the performance of Executive’s duties hereunder.

 

4. Compensation.

 

(a) Base Salary: As compensation for Executive’s services hereunder, the Company agrees to pay Executive a base salary at an annual rate of not less than $220,000, payable in accordance with the Company’s normal payroll schedule, but no less frequently than monthly. The Company may withhold from any amounts payable under this Agreement such federal, state or local taxes as shall be required to be withheld pursuant to any applicable law or regulation (the “Base Salary”). Executive’s Base Salary shall be subject to review from time to time, based on corporate policy and contributions made by Executive to the enterprise, and may be increased, but not decreased, during the Employment Period.

 

(b) Annual Cash Bonus: Beginning with calendar year 2021, Executive shall be eligible to receive an annual cash bonus award with a payout range of 0% - 100% of Executive’s Base Salary (the “Annual Bonus”), upon achievement of the performance metrics adopted by the Board of Directors (the “Board”) or the Compensation Committee in connection with the Short-Term Annual Cash Bonus Program, as described in the Incentive Program attached as Exhibit A (“Performance Metrics”). Executive shall be entitled to payment of the Annual Bonus as described in the Incentive Program. The Company agrees that it shall not eliminate the Annual Cash Bonus, or Executive’s eligibility thereunder, for the duration of the Employment Period.

 

(c) Short-Term Stock Incentive Plan.  For 2021, Executive received a grant of Restricted Stock Units in March 2021. During the Employment Period, Executive shall be eligible to receive additional Restricted Stock Units (“RSUs”) during the first week of January of each year, in accordance with the terms and conditions set forth in the Company’s Short-Term Stock Incentive Plan (“STIP”) as described in the Incentive Program. These additional RSUs shall vest in equal quarterly installments over a three-year period with the first installment beginning three months after the grant date. The Company agrees that it shall not eliminate the Short-Term Stock Incentive Plan, or Executive’s eligibility thereunder, for the duration of the Employment Period.

 

(d) Other Expenses: In addition to the compensation and benefits provided for above, the Company agrees to pay or to reimburse Executive during Executive’s employment for all reasonable, ordinary and necessary, properly documented, business expenses incurred in the performance of Executive’s services hereunder in accordance with Company policy in effect from time to time.

 

(e) Paid Time Off: Executive shall be allowed four (4) weeks of paid time off per calendar year, to be taken at times selected by Executive, as well as paid holidays, sick leave, and personal days in accordance with the Company’s policies (collectively, “PTO”). Executive’s accrued, unused PTO shall carry over from year to year and be paid out to Executive at time of separation of employment regardless of the reason.

 

 

(f) Fringe Benefits. In addition to Executive’s compensation provided by the foregoing, Executive shall be entitled to the benefits available generally to Company’s senior executive level employees pursuant to the Company’s programs which may now or, shall hereafter be in effect, or otherwise established by the Company, subject to the applicable terms and conditions of the benefit plans in effect at that time. Nothing herein shall affect the Company’s ability to modify, alter, terminate or otherwise change any benefit plan it has in effect at any given time, to the extent permitted by law. Notwithstanding, the Company agrees that it shall maintain and not modify, alter or terminate the Annual Cash Bonus, Short-Term Annual Stock Incentive Plan, and/or Executive’s eligibility or vested benefits thereunder for the duration of the Employment Period, as such programs, plans and benefits are described in the Incentive Program attached as Exhibit A to this Agreement, subject to applicable laws and regulations.

 

5. Employment Period.

 

(a) Employment Period. The Employment Period shall commence on the Effective Date and shall continue until the third anniversary of the Effective Date (the “Initial Term”). There shall be no automatic renewal upon the expiration of the Initial Term. The period during which Executive is employed hereunder shall be considered the Employment Period.

 

(b) Termination by Executive without Good Reason. Notwithstanding the provisions of Section 5(a), Executive may terminate Executive’s employment with Company and this Agreement at any time by giving the Company written notice at least thirty (30) days prior to the effective date of termination (the “Termination Date”). The Company, at its election, may require Executive to continue to perform Executive’s duties hereunder for the full thirty (30) day notice period, or may choose at any time during such 30-day notice period to accelerate the effective date of Executive’s resignation and end the employment relationship immediately (which for purposes of clarity shall not constitute a termination by the Company without Cause). If Executive chooses to terminate the employment relationship without Good Reason (as defined below), Executive shall only be entitled to receive upon such termination: (i) payment of Base Salary through the Termination Date, including through the notice period where termination has been accelerated, (ii) payment of any Annual Bonus for the prior calendar year, if not already paid; (iii) payment for any accrued but unused PTO, (iv) any right to continued benefits required by law (the foregoing (i) through (iv) shall be referred to herein as the “Accrued Obligations”). Payment of all Accrued Obligations owed herein shall be paid to Executive in lump sum, within seven (7) calendar days of the Termination Date or, if the Company accelerates the effective date of Executive’s resignation, then such Accrued Obligations will be paid to Executive on such accelerated effective date.

 

(c) Termination by Executive for Good Reason. Executive may terminate Executive’s employment with Company and this Agreement for Good Reason, which shall include: (A) a material reduction or diminution of Executive’s authorities, duties, responsibilities or Base Salary, which is subject to the provisions of Section 4(a); (B) relocation of Executive’s worksite to a location more than fifty (50) miles from Executive’s then-current location; or (C) a material breach by Company of this Agreement where Executive has provided Company thirty (30) days’ written notice and given the Company thirty (30) days’ opportunity to cure, and the Company has failed to cure such material breach during that notice period; and further provided Executive terminates employment within ninety (90) days following the Company’s failure to cure such material breach. A termination by Executive for Good Reason pursuant to this provision shall entitle Executive to payment of the Accrued Obligations, as well as Termination Compensation (as defined below) as if Executive had been terminated by the Company without Cause under Section (e)(1).

 

 

(d) Termination by Company for Cause.

 

(i) Notwithstanding the provisions of Section 5(a), at any time during the Employment Period, the Company may terminate Executive’s employment and this Agreement for Cause (defined below), with such termination taking effect upon written notice of the termination for Cause being provided to Executive. If Executive’s employment is terminated for Cause, Executive will not be entitled to and shall not receive any compensation or benefits of any type following the effective date of termination, other than the Accrued Obligations.

 

(ii) “Cause” shall be defined as termination where: (i) the Executive is convicted of fraud, theft or embezzlement against the Company or any subsidiary or affiliate thereof; (ii) the Executive is convicted of a felony or a crime involving moral turpitude; (iii) the Executive substantially breaches any material term of this Agreement and fails to cure such breach within 30 days after the receipt of written notice of such breach from the Company; or (iv) the Executive engages in gross negligence or willful misconduct that causes harm to the business and operations of the Company or a subsidiary or affiliate thereof.

 

(e) Termination by Company Without Cause. The Company may terminate Executive without Cause immediately by giving Executive written notice of such termination. Subject to the conditions set forth in Section 5(e)(ii), if Executive’s employment is terminated by the Company without Cause, in addition to the Accrued Obligations, Executive shall receive the following:

 

(i) a severance payment equivalent to one times (1x) the sum of Executive’s Base Salary and the greater of either the (i) highest Annual Bonus the Executive received during the three calendar years prior to the Termination Date or (ii) the Executive’s target Annual Bonus in effect for the year in which termination occurs. Such severance payment shall be paid in accordance with the Company’s regular payroll cycle, with the first payment commencing upon the pay date immediately following the effective date of the Release, if not timely revoked, as described in this Section 5(e), and on a continuing basis until the full amount has been paid;

 

(ii) if Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall provide for the payment of the Executive’s monthly COBRA payment for Executive and any of the Executive’s dependents that were participating in in such plan immediately prior to Executive’s termination (the “COBRA Subsidy”). The Company shall provide the COBRA Subsidy until the earliest of: (i) the twelve (12) month anniversary of the Termination Date, or (ii) the date Executive is no longer eligible to receive COBRA continuation coverage. If the Company cannot provide the COBRA Subsidy without violating applicable law or is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health insurance plans, then the Company shall pay the Executive an equivalent monthly cash payment such that Executive receives, on an after-tax basis, the same amount reimbursement for COBRA benefits for a period of twelve (12) months; and

 

(iii) automatic and immediate vesting of any and all equity benefits including, without limitation, RSUs under the STIP (all within seven (7) calendar days of the effective date of the Release, as described in this Section 5(e)).

 

 

The above severance payments, COBRA Subsidy and vesting of all equity benefits under Sections 5(e)(i) through (iii) are collectively referred to as the “Termination Compensation”). Executive shall not be entitled to the Termination Compensation unless Executive executes a separation and release agreement which shall include a full waiver and general release of claims in favor of the Company, in substantially the form and substance attached hereto as Exhibit B (the “Release”), and such Release becoming effective, if not timely revoked under the terms thereof, within fifty-two (52) days following the Termination Date (the “Release Execution Period”). Such release shall not affect Executive’s right to a defense by legal counsel and indemnification, if any, for actions taken within the scope of Executive’s employment. If the Release Execution Period straddles two taxable years of Executive, then the Company shall pay the Termination Compensation starting in the second of such taxable years (with any missed severance payments being paid to the Executive on the first payroll date occurring in the second calendar year). The Parties hereto acknowledge that the Termination Compensation to be provided under Section 5(e)(i) is to be provided in consideration for the above-specified Release.

 

(f) Termination for Executive’s Permanent Disability. If the Executive becomes physically or mentally disabled as determined by a qualified, licensed medical physician mutually selected by the Company and Executive and such disability causes Executive to become unable for a period of more than five (5) consecutive months or for shorter periods aggregating at least five (5) months during any twelve (12) month period to perform the Executive’s duties hereunder on a substantially full-time basis, then the Company will deliver a written notice to Executive stating with specificity the reason for termination and the Executive’s employment will terminate within 30 days of the date of such notice, and this shall be considered a “disability” under this Agreement. Such termination shall not affect the Executive’s benefits under the Company’s disability insurance program, if any, then in effect. In the event Executive is terminated pursuant to this Section 5(f), Company shall pay to Executive all Accrued Obligations and Termination Compensation as if Executive had been terminated by the Company without Cause, subject to reduction by the amount of any disability insurance proceeds paid to or on behalf of Executive.

 

(g) Termination Due to Executive’s Death. This Agreement and Executive’s employment hereunder will terminate immediately upon Executive’s death and the Company shall not have any further liability or obligation to Executive, Executive’s executors, heirs, assigns or any other person claiming under or through Executive’s estate, except that Executive’s estate shall receive payment for all Accrued Obligations and Termination Compensation as if Executive had been terminated by the Company without Cause.

 

(h) Termination Upon Change in Control. In the event of a “Change of Control” (defined herein) Executive may terminate Executive’s employment and this Agreement within ninety (90) days of the effective date of the Change of Control upon thirty (30) days written notice. “Change in Control” shall mean (a) any sale, lease, exchange or other transfer (in one transaction or a series of transactions) of all or substantially all of the assets of the Company; or (b) any consolidation or merger or other business combination of the Company with any other entity where the shareholders of the Company, immediately prior to the consolidation or merger or other business combination would not, immediately after the consolidation or merger or other business combination, beneficially own, directly or indirectly, shares representing fifty percent (50%) of the combined voting power of all of the outstanding securities of the entity issuing cash or securities in the consolidation or merger or other business combination (or its ultimate parent corporation, if any). For the avoidance of doubt, a Change of Control shall not include the RideNow Transaction as described in the Merger Agreement. Upon a Change in Control, 100% of all unvested stock options and/or restricted stock units held by Executive shall immediately vest (the “Accelerated Equity Vesting”). Further, upon a Change in Control, Executive shall be entitled to the Accrued Obligations and Termination Compensation as if Executive was terminated without Cause.

 

 

(i) Expiration of the Agreement. If the Agreement expires at the end of the Initial Term, the Agreement shall expire and Executive shall receive only the Accrued Obligations as of the date of expiration.

 

(j) Continuing Obligations. The obligations imposed on Executive with respect to non-competition, non-solicitation, confidentiality, non-disclosure and assignment of rights to inventions or developments in this Agreement shall continue, notwithstanding the termination of the employment relationship between the Parties, as set forth in Section 7.

 

6. Company Property. All correspondence, records, documents, software, promotional materials, and other Company property, including all copies, which come into Executive’s possession by, through or in the course of Executive’s employment, regardless of the source and whether created by Executive, are the sole and exclusive property of the Company, and immediately upon the termination of Executive’s employment, or at any time the Company shall request, Executive shall return to the Company all such property of the Companies, without retaining any copies, summaries or excerpts of any kind or in any format whatsoever. Executive shall not destroy any of the Companies’ property, such as by deleting electronic mail or other files, other than in the normal course of Executive’s employment. Executive further agrees that should Executive discover any Company property or Confidential Information in Executive’s possession after the return of such property has been requested, Executive agrees to return it promptly to Company without retaining copies, summaries or excerpts of any kind or in any format whatsoever.

 

7. Restrictive Covenants. Executive agrees and acknowledges that, in connection with Executive’s employment with the Company, in the new role as the Interim Chief Financial Officer & Controller, Executive will be provided with access to and become familiar with confidential and proprietary information, trade secrets, and substantial relationships belonging to the Companies. Accordingly, in consideration of Executive’s employment with the Company pursuant to this Agreement, any payments made to the Executive as set forth in Section 5, and other good and valuable consideration, the receipt of which is hereby acknowledged, Executive agrees to the following restrictive covenants:

 

(a) Non-Competition. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s own behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) engage directly or indirectly in the Restricted Business anywhere in the Restricted Territory; or (b) directly or indirectly be or become an officer, director, stockholder, owner, affiliate, partner, member, investor, joint venture, employee, agent, representative, consultant, lender, advisor, manager of, for or to, or otherwise be or become associated with or acquire or hold (of record, beneficially or otherwise) any direct or indirect interest in, any individual or entity that engages directly or indirectly in the Restricted Business anywhere in the Restricted Territory; provided, however, that Executive may, without violating this Section 7(a), own, as a passive investment, shares of capital stock of a publicly-held corporation that engages in the Restricted Business if (i) such shares are actively traded on an established national securities market in the United States or any other foreign securities exchange, (ii) the number of shares of such corporation’s capital stock that are owned beneficially (directly or indirectly) by the Executive represents less than one percent (1%) of the total number of shares of such corporation’s capital stock outstanding, and (iii) Executive is not associated directly or indirectly with such corporation or with any affiliate of such corporation. Executive acknowledges that nothing herein shall restrict the right, nature or extent to which Executive may practice as a lawyer after termination of employment with Company for any reason.

 

 

(b) Non-Solicitation of Customers and Other Business Relations. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) solicit, induce or attempt to solicit or induce any business, enterprise, or individual who, during the preceding two-year period, has a business relationship with the Companies (including any customer, licensee, supplier, manufacturer or vendor) (i) to cease doing business with the Companies, or (ii) to diminish or materially alter in a manner harmful to the Companies, such business, enterprise, or individual’s relationship with the Companies; or (iii) to purchase, contract for or receive any products or services from any such business relationship of Company (other than on behalf of the Companies) that engages in the Restricted Business anywhere within the Restricted Territory; provided, however, that nothing contained in this Section 7(b) shall prevent Executive from contracting with a third party who has or had a business relationship with Companies if such contracting does not adversely affect such third party’s business relationship with the Companies.

 

(c) Non-Hiring or Solicitation of Employees and Contractors. Executive agrees that during the Restricted Period, Executive shall not, either on Executive’s own behalf or on behalf of any third party, except on behalf of the Company or one of its affiliates: (a) directly or indirectly hire or solicit for hire any employee, independent contractor, or consultant or any person who was an employee, independent contractor, or consultant of the Companies within the preceding twelve (12) months, or (b) directly or indirectly encourage, induce, attempt to induce, solicit or attempt to solicit (on Executive’s own behalf or on behalf of any other business, enterprise, or individual) any employee, independent contractor, or consultant to leave or curtail his or her employment or engagement with the Companies; provided, however, that notwithstanding the foregoing, this Section 7(c) shall not prevent Executive from undertaking general solicitations of employment not specifically targeted at employees, independent contractors, or consultants of the Companies (so long as Executive does not, directly or indirectly, specifically solicit for hire any such employee, independent contractor, or consultant).

 

(d) Definitions. For purposes of this Section 7:

 

(i) “Restricted Business” shall mean the operation of a technology-based motor vehicle dealer e-commerce platform and/or any other internet-based platform that allows dealers, consumers, and any other business, enterprise, or individual to buy, sell, trade, finance, and/or transport pre-owned cars, trucks, snowmobiles, watercraft, motorcycles, ATVs, UTVs, scooters, side-by-sides, sport bikes, cruisers, or other modes of transportation, as well as the sale, leasing, rental, financing, servicing (including supply of parts) and ancillary activities relating to new and used motorcycles, ATVs, UTVs, scooters, side-by-sides, sport bikes, two- and three-wheeled cruisers, powered watercraft, and any other business engaged in by the Companies during Executive’s employment therewith.

 

(ii) “Restricted Period” shall mean the period while Executive is in the employ of the Company and/or any of its affiliates and for a one (1) year period following the end of such employment for any reason, provided, however, that in the event of any breach by Executive of this Section 7, the Restricted Period shall be automatically extended by a number of days equal to the total number of days in the period from the date on which such breach shall have first occurred through the date as of which such breach shall have been fully cured.

 

(iii) “Restricted Territory” means Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, and each territory of the United States, including Washington, D.C.

 

(e) Reasonableness of Restrictive Covenants. The Parties agree that the relevant public policy aspects of post-employment restrictive covenants have been discussed, and that every effort has been made to limit the restrictions placed upon Executive to those that are reasonable and necessary to protect the Companies’ legitimate interests. Executive acknowledges that, based upon Executive’s education, experience, and training, the restrictions set forth in this Section 7 will not prevent Executive from earning a livelihood and supporting herself and Executive’s family during the relevant time period. Executive further acknowledges that, because the Companies market their products and services throughout the Restricted Territory, a more narrow geographic limitation on the restrictive covenants set forth above would not adequately protect the Companies’ legitimate business interests.

 

 

(f) Modification. The Parties agree that if any restriction set forth in this Section 7 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or geographic area as to which it may be enforceable.

 

(g) Independence of Obligations. The Parties agree that the restrictive covenants set forth in this Section 7 are not intended to, and shall not, supersede any restrictive covenants contained in any other agreement (including, but not limited to the Merger Agreement or other agreements executed in connection with the RideNow Transaction, or if applicable, any stock or stock-linked award agreement, or otherwise), and that the provisions of Section 7 (along with the Confidentiality provisions of Section 8 below) shall be construed as separate and distinct obligations of Executive which shall expressly survive the termination of Executive’s employment with the Company.

 

(h) Injunctive Relief. The Parties agree that the restrictions contained in this Section 7 are necessary for the protection of the business and goodwill of the Companies and are considered by Executive to be reasonable for such purposes. Executive agrees that any material breach of Section 7 will result in irreparable harm and damage to the Companies that cannot be adequately compensated by a monetary award. Accordingly, it is expressly agreed that in addition to all other remedies available at law or in equity (including, without limitation, money damages from Executive), the Company and/or such affiliate shall be entitled to a temporary restraining order, preliminary injunction or such other form of injunctive or equitable relief as may be used by any court of competent jurisdiction to restrain or enjoin Executive from breaching any such covenant or provision or to specifically enforce the provisions hereof, without the need to post any bond or other security.

 

8. Protection of Confidential Information.

 

(a) Executive agrees that all information, whether or not in writing, relating to the business, technical or financial affairs of the Companies and that is generally understood in the industry as being confidential and/or proprietary information, is the exclusive property of the Companies. Executive agrees to hold in a fiduciary capacity for the sole benefit of the Companies all secret, confidential and/or proprietary information, knowledge, and data, including trade secrets, relating to the Companies obtained during Executive’s employment with the Company or any of its predecessors or affiliates, including but not limited to any trade secrets, confidential or secret designs, website technologies, content, processes, formulae, plans, manuals, devices, machines, know-how, methods, compositions, ideas, improvements, financial and marketing information, costs, pricing, sales, sales volume, salaries, methods and proposals, customer and prospective customer lists, customer identities, customer volume, or customer contact information, identity of key personnel in the employ of customers and prospective customers, amount or kind of customer’s purchases from the Companies, manufacturer lists, manufacturer identities, manufacturer volume, or manufacturer contact information, identity of key personnel in the employ of manufacturers, amount or kind of the Companies’ purchases from manufacturers, system documentation, hardware, engineering and configuration information, computer programs, source and object codes (whether or not patented, patentable, copyrighted or copyrightable), related software development information, inventions or other confidential or proprietary information belonging to the Companies or directly or indirectly relating to the Companies’ business and affairs (“Confidential Information”). Confidential Information shall not include information (i) that has entered the public domain through no fault of Executive, (ii) rightfully known by the receiving person without obligation of confidentiality to any third party prior to receipt of same from the disclosing person, (iii) independently developed by the receiving person without using or referring to any Confidential Information of the Company, and (iv) generally made available to the public by the disclosing person without obligation of confidentiality. Executive agrees that Executive will not at any time, either during the Employment Period or the Confidentiality Period (as defined below), disclose to anyone any Confidential Information, or utilize such Confidential Information for Executive’s own benefit, or for the benefit of third parties without written approval by an officer of the Company. For purposes of this section, the “Confidentiality Period” means for the period of one (1) year after the Termination Date. Executive further agrees that all memoranda, notes, records, data, schematics, sketches, computer programs, prototypes, or written, photographic, magnetic or other documents or tangible objects compiled by Executive or made available to Executive during the Employment Period concerning the business of the Companies and/or their respective clients, including any copies of such materials, shall be the property of the Companies and shall be delivered to the Company on the termination of Executive’s employment, or at any other time upon request of the Company.

 

 

(b) In the event Executive is questioned by anyone not employed by the Company or by an employee of or a consultant to the Company not authorized to receive such information, in regard to any Confidential Information or any other secret or confidential work of the Companies, or concerning any fact or circumstance relating thereto, or in the event that Executive becomes aware of the unauthorized use of Confidential Information by any party, whether competitive with the Company or not, Executive will promptly notify an officer of the Company.

 

(c) Court-Ordered Disclosure. In the event that, at any time during Executive’s employment with the Company or at any time thereafter, Executive receives a request to disclose any Confidential Information under the terms of a subpoena or order issued by a court or by a governmental body, Executive agrees to notify the Company immediately of the existence, terms, and circumstances surrounding such request, to consult with the Company on the advisability of taking legally available steps to resist or narrow such request; and, if disclosure of such Confidential Information is required to prevent Executive from being held in contempt or subject to other penalty, to furnish only such portion of the Confidential Information as, in the written opinion of counsel satisfactory to the Company, Executive is legally compelled to disclose, and to exercise Executive’s reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.

 

(d) Non-Interference with Governmental Agency Rights. The provisions of this Agreement and of any other agreement between Executive and the Company regarding confidentiality and non-disclosure are not intended to interfere with, or waive, any right or obligation (if any) to file a charge, cooperate, testify, report, or participate in an investigation with any appropriate federal, state or local governmental agency, including the Securities and Exchange Commission (“SEC”), the Equal Employment Opportunity Commission (“EEOC”), the Occupational Safety and Health Administration (“OSHA”), the National Labor Relations Board (“NLRB”), or any other federal, state or local government agency charged with enforcement of any law, rule, or regulation applicable to Company’s business (“Governmental Agency”); including the ability to communicate with such agency; the reporting of possible violations of any law, rule or regulation; making other disclosures that are protected under whistleblower provisions of any law, rule or regulation; or the receiving of an award for information provided to any Governmental Agency.

 

(e) Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, Executive acknowledges that Executive shall not have criminal or civil liability under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the trade secret to Executive’s attorney and may use the trade secret information in the court proceeding, if Executive (X) files any document containing the trade secret under seal and (Y) does not disclose the trade secret, except pursuant to court order.

 

 

9. Intellectual Property.

 

(a) Disclosure of Inventions. Executive will promptly disclose in confidence to the Company all inventions, improvements, processes, products, designs, original works of authorship, formulas, processes, compositions of matter, computer software programs, Internet products and services, e-commerce products and services, e-entertainment products and services, databases, mask works, trade secrets, product improvements, product ideas, new products, discoveries, methods, software, uniform resource locators or proposed uniform resource locators (“URLs”), domain names or proposed domain names, any trade names, trademarks or slogans, which may or may not be subject to or able to be patented, copyrighted, registered, or otherwise protected by law (the “Inventions”) that Executive makes, conceives or first reduces to practice or creates, either alone or jointly with others, during the period of Executive’s employment with the Company, in the course of Executive’s employment, and whether or not such Inventions are patentable, copyrightable or able to be protected as trade secrets, or otherwise able to be registered or protected by law.

 

(b) Assignment of Company Inventions; Work for Hire. Executive agrees that all Inventions that (i) are developed using equipment, supplies, facilities or trade secrets of the Companies, (ii) result from work performed by Executive for the Companies, or (iii) relate to the Companies’ business or current or anticipated research and development (the “Company Inventions”), will be the sole and exclusive property of the Company and are hereby irrevocably assigned by Executive to the Company from the moment of their creation and fixation in tangible media. Executive further acknowledges and agrees that any copyrightable works prepared by Executive within the course of Executive’s employment are “works for hire” under the Copyright Act and that the Company will be considered the author and owner of such copyrightable works.

 

(c) Assignment of Other Rights. In addition to the foregoing assignment of Company Inventions to the Company, Executive hereby irrevocably transfers and assigns to the Company: (i) all worldwide patents, patent applications, copyrights, mask works, trade secrets and other intellectual property rights in any Company Invention; and (ii) any and all “Moral Rights” (as defined below) that Executive may have in or with respect to any Company Invention. Executive also hereby forever waives and agrees never to assert any and all Moral Rights Executive may have in or with respect to any Company Invention, even after termination of Executive’s work on behalf of the Companies. “Moral Rights” means any rights to claim authorship of an Company Invention, to object to or prevent the modification of any Company Invention, or to withdraw from circulation or control the publication or distribution of any Company Invention, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”

 

(d) Assistance. Executive agrees to reasonably cooperate with the Company, at the Company’s sole cost and expense, to obtain and enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company Inventions in any and all countries. At the Company’s reasonably request, Executive will execute documents necessary for use in obtaining or enforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. Executive’s obligations under this section will continue for a period of twelve (12) months beyond the termination of Executive’s employment with the Company, provided that the Company will compensate Executive at a reasonable rate after such termination for time or expenses actually spent by Executive at the Company’s request on such assistance. Executive appoints the Secretary of the Company as Executive’s attorney-in-fact to execute documents on Executive’s behalf sole for the limited purpose set forth in this Section 9(d).

 

 

10. Publicity. Neither Party shall issue, without consent of the other Party, any press release or make any public announcement with respect to this Agreement or the employment relationship between them, or the ending of such relationship.

 

11. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their heirs, personal representatives, successors and assigns. Executive acknowledges and agrees that the Company may, in its sole discretion, assign this Agreement (i) to an affiliate of the Company at any time, or (ii) in the event the Company is acquired, is a non-surviving party in a merger, or transfers substantially all of its assets, to the transferee or surviving company, in each case without being required to obtain Executive’s consent. The Parties understand that the obligations of Executive are personal and may not be assigned by Executive.

 

12. Entire Agreement. This Agreement and the Exhibits attached hereto contains the entire understanding of Executive and the Company with respect to employment of Executive and supersedes any and all prior understandings, written or oral, regarding the terms or conditions of Executive’s employment with the Company. Notwithstanding the foregoing, except for the provisions of the Incentive Program attached hereto as Exhibit A, the provisions of this Agreement are not intended to, and shall not, supersede any restrictive covenants contained in any other agreements (including, but not limited to, any obligations related to non-competition, non-solicitation, confidentiality, non-disparagement, and/or assignment of inventions in an agreement entered into between Executive and the Company or any related or affiliated entity), and the provisions of this Agreement and of any other such agreements shall be construed as separate and distinct obligations of Executive. This Agreement may not be amended, waived, discharged or terminated orally, but only by an instrument in writing, specifically identified as an amendment to this Agreement, and signed by both Parties. By entering into this Agreement, Executive certifies and acknowledges that Executive has carefully read all of the provisions of this Agreement and that Executive voluntarily and knowingly enters into this Agreement.

 

13. Severability; Modification. If any portion, provision, section or subsection of this Agreement is determined to be unreasonable or unenforceable, for any reason whatsoever, the parties agree that such portion, provision, section or subsection may be severed, modified or narrowed, either by a court or the Company, so as to provide the maximum legally enforceable protection of the Companies’ legitimate business interests, without negating or impairing any other restrictions or agreements set forth herein. If any portion, provision, section or subsection of this Agreement is held to be invalid, illegal, or unenforceable, it shall not affect the other provisions of this Agreement, which shall remain in effect. This Agreement shall be construed in all respects as if such invalid, illegal or unenforceable provision was omitted.

 

14. Tax Consequences. Except as otherwise specifically provided in this Agreement, the Company will have no obligation to any person entitled to the benefits of this Agreement with respect to any tax obligation any such person incurs as a result of or attributable to this Agreement, including all supplemental agreements and employee benefits plans incorporated by reference therein, or arising from any payments made or to be made under this Agreement or thereunder.

 

 

15. Golden Parachute Excise Tax.

 

(a) Parachute Payments. If any payment or benefit Executive would receive pursuant to this Agreement or pursuant to any other agreement with the Company following a change in the ownership or effective control of the Company or change in the ownership of a substantial portion of the assets of the Company (which change, as further defined in Section 280G of the Code and regulations promulgated thereunder (“Section 280G”), is referred to herein as a “Change in Control” from the Company or otherwise would (i) constitute a “parachute payment” within the meaning of Section 280G (“Payment”), and (ii) but for this section, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: (1) cash payments, in the following order: (a) first, severance payments under this Agreement, (b) second, severance payments under any other agreement with the Company and (c) third, any other cash payments under any of the foregoing agreements; (2) cancellation of the acceleration of vesting of stock options, restricted stock, restricted stock units or any other awards that vest based on attainment of performance measures; (3) cancellation of the acceleration of vesting of stock options, restricted stock and restricted stock units or any other awards that vest only based on Executive’s continued service to the Company, taking the last ones scheduled to vest (absent the acceleration) first, and (4) other non-cash forms of benefits.

 

(b) Calculations. The foregoing calculations will be performed at the expense of the Company by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company. The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within thirty (30) calendar days after the Change in Control, the date of termination, if applicable, and any such other time or times as may be reasonably requested by the Company or Executive. If the Accounting Firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment.  Any good faith determinations of the Accounting Firm made hereunder shall be final, binding and conclusive upon the Company and Executive.

 

16. Section 409A.

 

(a) This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and any regulations and Treasury guidance promulgated thereunder (“Section 409A of the Code”). If the Company determines in good faith that any provision of this Agreement would cause Executive to incur an additional tax, penalty, or interest under Section 409A of the Code, the Company and Executive shall use reasonable efforts to reform such provision, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code or causing the imposition of such additional tax, penalty, or interest under Section 409A of the Code. The preceding provisions, however, shall not be construed as a guarantee by the Company of any particular tax effect to Executive under this Agreement.

 

 

(b) For purposes of Section 409A of the Code, the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event may Executive, directly or indirectly, designate the calendar year of payment.

 

(c) With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, Executive, as specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

 

(d) “Termination of employment,” “resignation,” or words of similar import, as used in this Agreement means, for purposes of any payments under this Agreement that are payments of deferred compensation subject to Section 409A of the Code, Executive’s “separation from service” as defined in Section 409A of the Code.

 

(e) To the extent that Section 409A of the Code would cause an adverse tax consequence to the Executive upon accelerating any payment of Termination Compensation pursuant to Section 5(h) upon a Change in Control (“Section 409A Payments”), a Change in Control shall not be deemed to occur with respect to such Section 409A Payments unless the Change in Control qualifies as a “Change in the Ownership or Effective Control of a Corporation or in the Ownership of a Substantial Portion of the Assets of a Corporation” under Treasury Department Regulation 1.409A-3(i)(5), as revised from time to time in either subsequent regulations or other guidance and such Section 409A Payments shall be made at the time such payments would have otherwise been made absent the Change in Control.

 

(f) Neither the Company nor Executive, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A.

 

(g) If a payment obligation under this Agreement arises on account of Executive’s separation from service while Executive is a “specified employee” (as defined under Section 409A of the Code and determined in good faith by the Company), any payment of “deferred compensation” (as defined under Treasury Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be paid within 15 days after the end of the six-month period beginning on the date of such separation from service or, if earlier, within 15 days after the appointment of the personal representative or executor of Executive’s estate following Executive’s death.

 

 

17. Governing Law. The law, including the statutes of limitation, of the State of Delaware shall govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to its or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.

 

18. Notices. Any notice provided for in this Agreement shall be provided in writing. Notices shall be effective from the date of service, if served personally on the Party to whom notice is to be given, or on the second day after mailing, if mailed by first class mail, postage prepaid. Notices shall be properly addressed to the Parties at their respective addresses or to such other address as either Party may later specify by notice to the other.

 

19. Dispute Resolution. The Parties agree that, except as otherwise provided in this Agreement, any controversy, claim or dispute arising out of or relating to this Agreement or the breach thereof, or arising out of or relating to the employment of Executive, or the termination thereof, including any statutory or common law claims under federal, state, or local law, including all laws prohibiting discrimination in the workplace, shall first be submitted to mediation conducted by the Judicial Arbitration and Mediation Service (JAMS). The Parties agree to attempt in good faith to resolve any such dispute in the course of such mediation. If any such dispute is not resolved by mediation, the Parties agree that such dispute shall be submitted to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, or any federal court of competent jurisdiction sitting in the State of Delaware, and the Parties hereby waive any and all defenses and/or objections to jurisdiction and venue in such courts. Notwithstanding anything herein to the contrary, the Parties further acknowledge and agree that, due to the nature of the confidential information, trade secrets, and intellectual property belonging to the Companies to which Executive has or will be given access, and the likelihood of significant harm that the Company would suffer in the event that such information was disclosed to third parties, nothing in this paragraph shall preclude the Company from immediately going to court to seek injunctive relief to prevent Executive from violating the obligations established in Sections 7, 8 or 9 of this Agreement. Each of the parties irrevocably agrees to waive any and all rights they may have to trial by jury in any action, proceeding or claim of any nature relating to this Agreement, or the enforcement of this Agreement, and acknowledge that such waiver is knowing and voluntary. In the event of any dispute regarding the interpretation or enforcement, or otherwise arising out of this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney’s fees and costs, including through appeal.

 

 

20. Indemnification. The Company shall indemnify and hold harmless Executive for any liability to any third-party incurred by reason of any act or omission performed by Executive while acting in good faith on behalf of the Company and within the scope of the authority of Executive pursuant to this Agreement and under the rules and policies of the Company, except that Executive must have in good faith believed that such action was in the best interest of the Company and such course of action or inaction must not have constituted gross negligence, fraud, willful misconduct, or breach of a fiduciary duty.

 

21. Miscellaneous.

 

(a) No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.

 

(b) The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.

 

(c) The language in all parts of this Agreement will be construed, in all cases, according to its fair meaning, and not for or against either Party hereto. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party will not be employed in the interpretation of this Agreement.

 

(d) Capitalized terms used in this Agreement have the meanings ascribed to them by definition in this Agreement; or if not expressly defined in this Agreement, to the meanings ascribed in the Merger Agreement (i.e. the Agreement and Plan of Merger and Equity Purchase Agreement, dated March 12, 2021; and the transactions contemplated thereby as the “RideNow Transaction”).

 

(e) The obligations of Company under this Agreement, including its obligation to pay the compensation provided for in this Agreement, are contingent upon Executive’s performance of Executive’s obligations under this Agreement.

 

(f) This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement.

 

 

IN WITNESS WHEREOF, each of the Parties hereto has caused this Executive Employment Agreement to be duly executed, by its authorized officers or individually, as of the date first written above, and shall be effective as of the Effective Date.

 

	RumbleOn, Inc.
	By:	/s/ Marshall Chesrown
		Name:	Marshall Chesrown
		Title:	Chief Executive Officer
	/s/ Beverley Rath
	Beverley Rath

 

 

Exhibit A to Executive Employment Agreement

 

[See Executive Incentive Plan included in definitive proxy statement filed on July 1, 2021.]

 

 

Exhibit B to Executive Employment Agreement

 

Release Agreement

 

This Release Agreement (this “Release”) is executed pursuant to Section 5(e)(iii) of that certain Executive Employment Agreement, dated as of August 31, 2021 (the “Employment Agreement”), between RumbleOn, Inc., a Nevada corporation (the “Company”), and Beverley Rath (“Executive”). All terms capitalized and not defined herein shall have the meaning given in the Employment Agreement. Executive acknowledges that the Termination Compensation under this Release does not, in any way, extend the period of employment or continuous service beyond the last day of employment or confer any other rights or benefits upon Executive other than what may be set forth expressly herein.

 

1. Full and Adequate Consideration. Executive acknowledges and agrees that the Termination Compensation shall constitute full and adequate consideration that Executive would not otherwise be entitled but for the promises and obligations set forth in this Release, including Executive's waiver and general release of claims against Company, cooperation during any transitional period, and adherence to other post-termination obligations. Executive acknowledges that Company has no further obligation to Executive, including to pay any additional amounts of money or benefits, other than as set forth below:

 

(a) Severance Payment. In accordance with and pursuant to Section 5(e)(i) of the Employment Agreement, if Executive is terminated by Company (other than with Cause under Section 5(d), by Executive without Good Reason under Section 5(b), or upon Expiration of the Agreement under Section 5(i)), then in addition to the Accrued Obligations, Executive shall receive a severance payment equivalent to three times (3x) the sum of Executive's Base Salary and the greater of either the (i) highest Annual Bonus the Executive received during the three calendar years prior to the Termination Date or (ii) the Executive’s target Annual Bonus in effect for the year in which termination occurs. Such severance payment shall be paid in accordance with the Company's regular payroll cycle, with the first payment commencing upon the pay date immediately following the effective date of this Release, if not timely revoked under the terms hereof, within fifty-two (52) days following the Termination Date (the “Release Execution Period”). If the Release Execution Period straddles two taxable years of Executive, then the Company shall pay the Termination Compensation starting in the second of such taxable years (with any missed severance payments being paid to Executive on the first payroll date occurring in the second calendar year).

 

(b) COBRA Subsidy. If Executive timely and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall provide for the payment of the Executive’s monthly COBRA payment for Executive and any of the Executive’s dependents that were participating in in such plan immediately prior to Executive’s termination (the “COBRA Subsidy”). The Company shall provide the COBRA Subsidy until the earliest of: (i) the twenty-four (24) month anniversary of the Termination Date, or (ii) the date Executive is no longer eligible to receive COBRA continuation coverage. If the Company cannot provide the COBRA Subsidy without violating applicable law or is otherwise unable to continue to cover the Executive or the Executive’s dependents under its group health insurance plans, then the Company shall pay the Executive an equivalent monthly cash payment such that Executive receives, on an after-tax basis, the same amount reimbursement for COBRA benefits for a period of eighteen (18) months.

 

 

Exhibit B to Executive Employment Agreement

 

(c) Equity Benefits. Executive shall have automatic and immediate vesting of any and all equity benefits including, without limitation, the Initial RSUs, and RSUs under the STIP and the LTIP all (within seven (7) calendar days of the effective date of this Release, as described in Section 5(e) of the Employment Agreement).

 

2. Waiver and Release of Claims.

 

(a) General Release. Executive, for and on behalf of himself and each of his heirs, administrators, executors, personal representatives, beneficiaries, and assigns, to the maximum extent permitted by law, does hereby release and forever discharge the “Company Releasees” hereunder, consisting of RumbleOn, Inc., and each of its past, present and future parents, subsidiaries, divisions, affiliates, predecessors, successors, partners, associates, heirs, assigns, agents, managers, members, directors, officers, employees, representatives, lawyers, insurers, owners, principals, shareholders, employee benefit plans and fiduciaries, administrators, transferees and assigns and all persons acting by, through, under or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands, damages, losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown, fixed or contingent (hereinafter called “Claims”), which Executive now has or may hereafter have against the Company Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof. However, the parties expressly acknowledge that this waiver and release shall not affect Executive's right to a defense by legal counsel and indemnification to the extent such rights otherwise exist under the terms of the Employment Agreement, including Section 20 thereof. The Claims released by Executive in this Section 2(a) include, without limiting the generality of the foregoing, any Claims in any way arising out of, based upon, or related to:

 

(i) Executive’s employment by or service to Company or any of the other Company Releasees, or the termination thereof;

 

(ii) any alleged breach of the Employment Agreement or Company’s employee handbook, policies or procedures; or

 

(iii) any alleged tort, including but not limited to misrepresentation, defamation, interference with business relationships, intentional or negligent infliction of emotional distress, negligence or wrongful discharge.

 

Notwithstanding the foregoing, this waiver and release shall not apply to or affect Executive’s rights under this Agreement including, without limitation, any claim against Company and/or the Company Releasees for breach or default hereunder.

 

(b) Statutory Claims. Executive further knowingly and voluntarily releases and discharges the Company Releasees, collectively, separately and severally, for any and all Claims based upon any alleged violation of any federal, state or local statute, ordinance or regulation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended 1991, 42 U.S.C. § 1981; the Americans with Disabilities Act ("ADA"); the Employee Retirement Income Security Act ("ERISA"); the Consolidated Omnibus Budget Reconciliation Act ("COBRA"); the Occupational Safety and Health Act ("OSHA"); the Fair Labor Standards Act ("FLSA"); the Family and Medical Leave Act ("FMLA"); the Equal Pay Act ("EPA"); the Worker Adjustment and Retraining Notification Act ("WARN"); the Immigration Reform and Control Act ("IRCA"); the Sarbanes-Oxley Act; the Federal False Claims Act; the Internal Revenue Code; the National Labor Relations Act; and any and all other local, state and/or federal human or civil rights, wage-hour, pension or labor laws, rules, regulations and/or ordinances which relate to employment, discrimination, retaliation, or payment of wages or other compensation or otherwise.

 

 

Exhibit B to Executive Employment Agreement

 

(c) Release of Claims Under the ADEA. In addition to the foregoing, Executive hereby knowingly and voluntarily releases and discharges the Company Releasees, collectively, separately and severally, from and for any and all Claims arising under the Age Discrimination in Employment Act ("ADEA") and/or the Older Workers Benefit Protection Act ("OWBPA"), which Executive and/or his heirs, administrators, executors, personal representatives, beneficiaries, and assigns may have or claim to have against any of the Company Releasees (such release and waiver referred to as the “ADEA Waiver”). Notwithstanding any other provision or section of this Agreement, Executive does not hereby waive any rights or claims under the ADEA/OWBPA that may arise after the time Executive signs this Agreement.

 

(d) Consideration Period For ADEA Waiver. Executive hereby acknowledges that Executive has been given a period of at least twenty-one (21) days (or, to the extent required by applicable law, forty-five (45) days) to consider the terms of this Release, that Executive is advised to consult with an attorney prior to executing this Release, and that Executive has received good and valuable consideration, to which Executive is otherwise not entitled, in exchange for Executive's execution of this Release. Executive and Company acknowledge and agree that any revisions made to this Release after it was initially delivered to Executive were either not material or were requested by Executive, and expressly agree that such changes do not re-start the consideration period described in the preceding sentence.

 

3. Non-Interference with Governmental Agency Rights. Executive understands that the terms of this Release, including the provisions regarding waiver and release, confidentiality, and non-disparagement, are not intended to interfere with, or waive, any right or obligation (if any) to file a charge, cooperate, testify, report, or participate in an investigation with any appropriate federal, state or local governmental agency, including the Securities and Exchange Commission ("SEC"), the Equal Employment Opportunity Commission ("EEOC"), the Occupational Safety and Health Administration ("OSHA"), the National Labor Relations Board ("NLRB"), or any other federal, state or local government agency charged with enforcement of any law, rule, or regulation applicable to Company's business ("Governmental Agency"); including the ability to communicate with such agency; the reporting of possible violations of any law, rule or regulation; making other disclosures that are protected under whistleblower provisions of any law, rule or regulation; or the receiving of an award for information provided to any Governmental Agency. However, Executive acknowledges and understands that by signing this Release, Executive is fully waiving and releasing the right to receive or accept any individual remedy or relief, monetary or otherwise, obtained through the efforts of any such agency on Executive's behalf or on behalf of a class of individuals through which action or proceeding Executive might otherwise have a right or benefit.

 

4. Post-Termination Survival of Restrictive Covenants. Executive acknowledges and understands, that despite Executive's termination of employment, the obligations set forth in Section 7 (Restrictive Covenants) and Section 8 (Confidentiality), and the rights and remedies for breach and enforcement thereof in the Employment Agreement, shall remain in full force and effect for the durations expressly stated therein, if not unlimited, and as otherwise specified in this Release, regardless of the circumstances of Executive’s termination.

 

 

Exhibit B to Executive Employment Agreement

 

5. Representations by Executive.

 

(a) No Pending Disputes. Executive represents and warrants that no litigation, dispute or other proceeding has been filed or is pending by Executive against Company or any other Company Releasee, and that Executive has not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations, or causes of action released herein.

 

(b) No Pending Obligations Owed by Company. Executive represents and warrants that Executive has received all wages and compensation owed through the date Executive signs this Release and that Executive has received all other amounts due from Company through the date Executive signs this Release, including, but not limited to, all bonuses, commissions, paid time off, reimbursements, and any other benefits to which Executive may be entitled from any of the Company Releasees, except for the Termination Compensation provided under Section 5(e) of the Employment Agreement, which will be paid as contemplated therein, and any vested benefits under any Company Releasee’s employee benefit plans which shall be governed by the terms of the applicable plan document and award agreements. Executive further represents and warrants that Executive has been provided with all leave or other accommodations (including under the Family and Medical Leave Act and/or the Americans with Disabilities Act) to which Executive may have been entitled, if any, and that Executive has not suffered any workplace illness or injury other than any illness or injury which Executive has already advised Company in writing, if any.

 

(c) Return of Property/No Improper Disclosure. Executive represents and warrants that Executive has returned all Company property as of the date Executive signs this Release. Executive represents and warrants that Executive has not disclosed any Confidential Information (as defined in the Employment Agreement) except as specifically authorized in the performance of Executive's duties for Company or as otherwise permitted in the Employment Agreement.

 

6. Non-Admission of Liability. This Release shall not be construed as an admission of liability by Company or any other Company Releasee, or as an admission that Company or other any Company Releasee has acted in any way wrongfully towards Executive.

 

7. Confidentiality of Release. Executive acknowledges and agrees that Executive will not, unless required by law or as otherwise permitted by Company, disclose to others any information regarding the terms of this Release, the benefits being paid under it or the fact of its payment (which are deemed confidential), except that Executive may disclose this information to Executive's attorney, accountant or other professional advisor to whom Executive must make the disclosure in order to receive professional services and Executive may disclose or file this Release and the Employment Agreement to the extent required to be filed in any legal proceeding or arbitration brought by or against the Executive in connection with this Release or the Employment Agreement. However, Executive acknowledges that Executive must instruct the parties who have been disclosed such information, as applicable, about the confidential nature of this Agreement and their obligation to maintain the confidentiality of this information, and shall be responsible for any breach of such obligation by such parties.

 

 

Exhibit B to Executive Employment Agreement

 

8. Binding Release. This Release is binding on the parties hereto and their respective successors, heirs, administrators, executors, and assigns. The rights and benefits of Executive under this Agreement being personal to the Executive, they may not be assigned by Executive without the prior written consent of Company; provided, however, Executive expressly acknowledges and agrees that the provisions of this Release, and any and all terms which are expressly incorporated herein, are enforceable against Executive by Company's affiliates, successors and/or assigns or any other Company Releasee, which shall be deemed third party beneficiaries hereof.

 

9. Entire Understanding. This Release constitutes the sole and entire agreement of the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous understandings or agreements between the parties, whether oral or written, on such subject matter, except as expressly provided herein; provided, that, the provisions of the Merger Agreement or other agreement executed in connection with the Transaction, or if applicable, any stock or stock-linked award agreement, or otherwise, shall remain in full force and effect, including but not limited to the restrictive covenants and other obligations thereof.

 

10. Severability. In case any one or more of the provisions in this Release, or of those surviving post-termination provisions of the Employment Agreement incorporated herein, or a portion thereof, shall be held to be invalid, illegal or unenforceable for any reason, (except for the waiver/release provision of Section 2 above), the invalidity, illegality or unenforceability of any provisions or portions shall not affect any other provision or portion hereof; this Release shall be construed as if the invalid, illegal or unenforceable provision or portion had never been contained in this Agreement.

 

11. Governing Law; Venue. The law, including the statutes of limitation, of the State of Delaware shall govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to its or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.

 

12. Dispute Resolution. The Parties agree that, except as otherwise provided in this Release, any controversy, claim or dispute arising out of or relating to this Release or the breach thereof, shall first be submitted to mediation conducted by the Judicial Arbitration and Mediation Service (JAMS). The Parties agree to attempt in good faith to resolve any such dispute in the course of such mediation. If any such dispute is not resolved by mediation, the Parties agree that such dispute shall be submitted to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, or any federal court of competent jurisdiction sitting in the State of Delaware, and the Parties hereby waive any and all defenses and/or objections to jurisdiction and venue in such courts. Each of the parties irrevocably agrees to waive any and all rights they may have to trial by jury in any action, proceeding or claim of any nature relating to this Release, or the enforcement of this Release, and acknowledge that such waiver is knowing and voluntary. In the event of any dispute regarding the interpretation or enforcement, or otherwise arising out of this Release, the prevailing party shall be entitled to an award of its reasonable attorney's fees and costs, including through appeal.

 

13. Revocation Period. Executive has the right to revoke this Release within seven (7) calendar days after Executive’s execution of this Release by giving notice in writing of such revocation to: [●]. No revocation shall be timely or effective unless actually received by Company within the seven day revocation period. In the event that Executive revokes this Release prior to the Effective Date, this Release, and the promises and obligations contained therein, shall automatically and retroactively be deemed null and void and Company's and Executive’s rights, remedies, and obligations to each other shall be reinstated as if this Release had never been executed or delivered including, without limitation, that Company will not be obligated to provide Executive the consideration referenced in Section 1 of this Release.

 

14. Effective Date. This Release shall become effective on the eighth (8^th) calendar day following execution by Executive, where not timely revoked.

 

[SIGNATURES ON FOLLOWING PAGE]

 

 

Exhibit B to Executive Employment Agreement

 

IN WITNESS WHEREOF, the parties freely and voluntarily execute this Release as follows:

 

RumbleOn, Inc.		Executive
By:
Title:

 

 

 

 

Exhibit 23.1

 

Consent Of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statements on Forms S-3 (Nos. 333-223425, 333-226514, 333-228483, 333-231631, 333-234340, 333-233399, 333-239285, 333-257198 and 333-259337) and on Forms S-8 (Nos. 333-219203, 333-223428, 333-226440, 333-231884, 333-248926 and 333-259321) of RumbleOn, Inc. of our report dated April 6, 2021, relating to the combined financial statements of RideNow Group and Affiliates as of and for the years ended December 31, 2020 and 2019, and our report dated February 12, 2021, relating to the combined financial statements of RideNow Group and Affiliates as of and for the years ended December 31, 2019 and 2018.

 

/s/ Dixon Hughes Goodman LLP

Atlanta, GA

September 7, 2021

 

 

Exhibit 99.1

 

 

 

RumbleOn / RideNow ProForma Historical Metrics

 

		ProForma
		FY2020				Q1				Q2
Powersports
Revenue
New vehicle		$	515,823,974			$	143,257,024			$	142,731,660
Used vehicle
Retail used vehicle			151,655,268				38,988,272				56,344,912
Wholesale			42,196,119				10,854,884				27,978,693
Total used vehicle revenue			193,851,387				49,843,156				84,323,605
Finance and insurance, net			71,845,220				19,407,653				21,633,640
Total variable operations			781,520,581				212,507,833				248,688,905
Parts and service			164,895,944				43,529,102				47,480,825
Other			-				-				-
Total revenue		$	946,416,525			$	256,036,935			$	296,169,730
Gross Profit
New vehicle		$	86,478,020			$	27,878,176			$	29,920,171
Used vehicle
Retail used vehicle			25,488,661				7,242,044				10,702,534
Wholesale			5,996,011				2,978,493				6,957,201
Total used vehicle gross profit			31,484,672				10,220,537				17,659,735
Finance and insurance, net			71,845,220				19,407,653				21,633,640
Total variable operations (1)			189,807,912				57,506,366				69,213,546
Parts, service and accessories			73,878,415				20,052,501				22,775,127
Other			-				-				-
Total gross profit		$	263,686,327			$	77,558,867			$	91,988,673
Retail vehicle unit sales
New vehicle			34,370				9,028				9,215
Retail used vehicle			11,615				2,866				3,865
Wholesale			4,825				1,006				2,411
Used vehicle			16,440				3,872				6,276
Total vehicles sold			50,810				12,900				15,491
Revenue per vehicle retailed
New vehicle		$	15,008			$	15,868			$	15,489
Retail used vehicle		$	13,057			$	13,604			$	14,578
Wholesale		$	8,745			$	10,790			$	11,605
Used vehicle		$	11,791			$	12,873			$	13,436
Gross Profit per vehicle retailed
New vehicle		$	2,516			$	3,088			$	3,247
Used vehicle		$	1,915			$	2,640			$	2,814
Finance and insurance		$	1,562			$	1,632			$	1,654
Total variable operations (2)		$	4,128			$	4,835			$	5,292
Automotive
Revenue		$	337,084,959			$	84,070,855			$	127,286,568
Gross margin		$	28,284,328			$	6,211,047			$	10,168,847
Vehicles sold			12,741				2,494				3,300
Revenue per vehicle		$	26,457			$	33,709			$	38,572
Gross margin per vehicle		$	2,220			$	2,490			$	3,081
Transportation and Logistics (includes InterCo)
Revenue		$	35,887,132			$	10,030,352			$	14,517,592
Gross margin		$	7,615,928			$	1,988,930			$	2,385,197
Vehicles transported			61,314				18,907				23,502
Revenue per vehicle transported		$	585			$	531			$	618
Gross margin per vehicle transported		$	124			$	105			$	101

 

 

 

 

 

		ProForma
		FY2020				Q1				Q2
Total Company
Revenue
Powersports		$	945,544,066			$	256,036,935			$	296,169,730
Automotive			337,084,959				84,070,855				127,286,568
Transportation and logistics			31,816,157				9,338,272				13,080,362
Other			872,459				-				-
Total revenue		$	1,315,317,641			$	349,446,062			$	436,536,660
Gross margin by segment
Powersports		$	262,813,868			$	77,558,867			$	91,988,673
Automotive			28,284,328				6,211,047				10,168,847
Transportation and logistics			7,615,928				1,988,930				2,385,197
Other (3)			(10,865,954	)			-				-
Total Gross Margin		$	287,848,170			$	85,758,844			$	104,542,717
Compensation and benefits
Cash compensation and benefits		$	126,911,758			$	33,875,889			$	40,846,553
Share-based compensation and benefits (4)			2,978,236				1,026,216				701,275
Total compensation and benefits			129,889,994				34,902,105				41,547,828
Advertising, marketing & selling fees			17,817,609				5,017,850				5,871,842
Professional fees			5,099,019				2,114,824				1,752,043
Technology development and software			1,421,138				403,475				424,063
General and administrative			28,621,095				6,745,580				9,584,465
RideNow facilities			25,330,533				7,328,847				7,503,709
Total selling general and administrative		$	208,179,388			$	56,512,681			$	66,683,950
Other
Stores			45				45				45
Employees			1,925				1,987				2,061

  

(1)	Total variable operations include new vehicle, used vehicle (retail and wholesale), and finance and insurance proceeds

 

(2)	Total variable operations gross profit per vehicle retailed is calculated by dividing the sum of new vehicle, used vehicle, and finance and insurance gross profit by total retail vehicle unit sales

 

(3)	Amount represents the impairment loss on automotive inventory of $11,738,413 less the other revenue of $872,459.

 

(4)	Excludes proforma impact of RSU issuance to certain employees

 

Disclaimer

 

On August 31, 2021, RumbleOn, Inc. (“RumbleOn”) completed its business combination with RideNow. This supplemental pro forma combined company information has been prepared by RumbleOn for illustrative and informational purposes. This data should be read in conjunction with (i) RumbleOn’s Form 10-K for the year ended December 31, 2020 filed on March 31, 2021, (ii) RumbleOn’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2021 filed on May 17, 2021, (iii) RumbleOn’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2021 filed on August 4, 2021, (iv) the audited combined financial statements of RideNow Group and affiliates for the years ended December 31, 2020 and 2019 filed with RumbleOn’s Form 8-K filed on September 7, 2021 (the “Form 8-K”), (v) the unaudited condensed combined financials statements of RideNow Group and affiliates for the three months ended March 31, 2021 filed with the Form 8-K, (vi) the unaudited condensed combined financial statements of RideNow Group and affiliates for the three and six months ended June 30, 2021 filed with the Form 8-K, and (vii) the unaudited pro forma condensed combined statements of RumbleOn as of June 30, 2021 and for the six months ended June 30, 2021 and twelve months ended December 31, 2020 filed with the Form 8-K and prepared in accordance with Article 11 of Regulation S-X. This supplemental pro forma combined company information does not purport to project the future operating results of the combined company.

 

Page 2 of 2

 

Exhibit 99.2

 

RumbleOn Announces the Closing of its Business Combination with RideNow, Creating the First Omnichannel Customer Experience in Powersports

 

Company Announces the Closing of its Upsized Public Offering and Full Exercise of the Underwriters’ Option to
Purchase Additional Shares

 

Management to Host a Conference Call at 8:00 a.m. ET on Wednesday, September 1

 

DALLAS--(BUSINESS WIRE)-- RumbleOn, Inc. (NASDAQ: RMBL), the nation’s largest retailer of powersports vehicles and first omnichannel customer experience in powersports, today announced the closing of its previously announced business combination with RideNow, acquiring 100% of the RideNow dealership portfolio, bringing an unparalleled solution to powersports enthusiasts. The Company will host a conference call tomorrow, September 1, 2021 at 8:00 a.m. ET, to discuss the combined business.

 

The Company also announced that immediately prior to closing the RideNow transaction, it closed its upsized public offering of approximately 5.1 million shares of Class B Common Stock at a price to the public of $33.00 per share, which includes the full exercise of the underwriters’ option to purchase an additional 659,090 shares from RumbleOn. The Company raised approximately $167.0 million in gross proceeds for the business combination and working capital. The business combination is also being funded through a $280.0 million term loan from funds managed by Oaktree Capital Management L.P. (and certain other lenders) and the issuance to RideNow equity holders of approximately 5.8 million RumbleOn Class B shares. In addition, the lenders have committed to a $120.0 million delayed draw term loan facility which the Company may use in the future to fund acquisitions, subject to certain conditions. 

 

Following the close of the transaction, total shares outstanding are approximately 15.0 million.

 

“We are very excited to announce that we closed our business combination with RideNow, becoming the first omnichannel customer experience in powersports,” said Marshall Chesrown, RumbleOn’s Chief Executive Officer. “Consumers are seeking new and exciting experiences and there is no better place than powersports. Powersports are wants, not needs, and it’s that lifestyle, that passion for the sport that creates the opportunity for an Omnichannel solution. We are confident that the integration of RideNow’s extensive geographic footprint, strong retail brand combined with RumbleOn’s technology platform, and access to pre-owned inventory will make powersport vehicles more accessible to the enthusiast and the first time buyers, nationwide.”

 

Mark Tkach, co-principal owner and co-founder of RideNow, commented, “Today marks a significant evolution in the powersports industry. Combining with RumbleOn enables us to offer an unparalleled customer experience for outdoor enthusiasts across the country. We look forward to the opportunity to work alongside Marshall and the entire RumbleOn team to revolutionize the $100+ billion market. We are entering the next phase of growth and are ready to hit the ground running.”

 

B. Riley Securities, a subsidiary of B. Riley Financial Inc., acted as exclusive financial advisor to RumbleOn and sole debt placement agent in conjunction with the transaction. B. Riley Securities and Baird acted as joint book-runners for the offering. D.A. Davidson & Co. and Wedbush Securities acted as co-managers for the offering. Akerman LLP served as legal counsel to RumbleOn and Nelson Mullins Riley & Scarborough LLP served as legal counsel to the underwriters.

 

A shelf registration statement relating to the shares of Class B Common Stock offered was filed with the U.S. Securities and Exchange Commission (the “SEC”) on Form S-3 (File No. 333-257198) and was declared effective by the SEC on June 28, 2021. Offers were made only by means of a prospectus supplement and accompanying base prospectus forming a part of the effective registration statement. Copies of the prospectus supplement and accompanying prospectus relating to the offering may also be obtained from B. Riley Securities, Inc., Attention: Prospectus Department, 1300 North 17th Street, Suite 1300, Arlington, Virginia 22209, or by telephone at 703-312-9580 or by email at [email protected], Robert W. Baird & Co. Incorporated, Attention: Syndicate Department, 777 East Wisconsin Avenue, Milwaukee, WI 53202, by telephone at 800-792-2473, or by email at [email protected] or on the SEC’s website at http://www.sec.gov.

 

This press release shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which such an offer, solicitation or sale is not permitted.

 

 

Conference Call Details

 

Senior management from RumbleOn will host a conference call tomorrow, Wednesday, September 1, at 8:00 a.m. ET. A live and archived webcast can be accessed from RumbleOn’s Investor Relations website at https://investors.rumbleon.com/. To access the conference call telephonically, callers may dial (877) 407-9716, or (201) 493-6779 for callers outside of the United States and entering conference ID 13722804.

 

About RumbleOn

 

RumbleOn (NASDAQ: RMBL) is the nation’s largest retailer of powersports vehicles and first omnichannel customer experience in powersports. Whether buying, selling, trading or financing a new or used vehicle, RumbleOn enables dealers and consumers to transact without geographic boundaries in a transparent, fast and friction free experience. The Company uses innovative technology to aggregate and distribute pre-owned vehicles and is disrupting the pre-owned vehicle supply chain by providing dealers with technology solutions such as virtual inventory, and a 24/7 distribution platform. RumbleOn offers customers a truly unique experience, wherever they want to shop, online or in-store. For more information, please visit http://www.rumbleon.com.

 

Cautionary Note on Forward-Looking Statements

 

This press release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 regarding the business combination of RumbleOn and RideNow (the “Transaction”), including the benefits of the Transaction. Readers are cautioned not to place undue reliance on these forward-looking statements, which are based on our expectations as of the date of this press release and speak only as of the date of this press release and are advised to consider the factors listed above together with the additional factors under the heading “Forward-Looking and Cautionary Statements” and “Risk Factors” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, as may be supplemented or amended by the Company’s Quarterly Reports on Form 10-Q and other filings with the SEC, including the prospectus supplement. We undertake no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise, except as required by law.

 

Contacts

 

Investor Relations:
The Blueshirt Group
Hilary Sumnicht
[email protected]

 

Source: RumbleOn, Inc

 

 

 

Exhibit 99.3

 

 

 

 

RIDENOW GROUP AND AFFILIATES

COMBINED FINANCIAL STATEMENTS

 

DECEMBER 31, 2020 AND 2019

 

 

 

 

 

 

 

 

 

RideNow Group and Affiliates

Table of Contents

Years Ended December 31, 2020 and 2019

 

Report of Independent Registered Public Accounting Firm	1
Combined Balance Sheets	2
Combined Statements of Operations	3
Combined Statements of Owners’ Equity	4
Combined Statements of Cash Flows	5
Notes to Combined Financial Statements	6

 

 

Report of Independent Registered Public Accounting Firm

 

Management and Board of Directors

RideNow Group and Affiliates

Chandler, Arizona

 

Opinion on the Combined Financial Statements

 

We have audited the accompanying combined balance sheets of RideNow Group and Affiliates (the “Company”) as of December 31, 2020 and 2019, and the related combined statements of income, changes in owners’ equity, and cash flows for the years then ended, and the related notes to the combined financial statements. In our opinion, the combined financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020 and 2019, and the results of their operations and cash flows for the years then ended, in conformity with U.S. generally accepted accounting principles.

 

Basis for Opinion

 

These combined financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s combined financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audits in accordance with the standards of the PCAOB and in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the combined financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

 

Our audits included performing procedures to assess the risks of material misstatement of the combined financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the combined financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the combined financial statements. We believe that our audits provide a reasonable basis for our opinion.

 

Critical Audit Matters

 

Critical audit matters are matters arising from the current period audit of the combined financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the combined financial statements and (2) involved our especially challenging, subjective, or complex judgments. We determined that there are no critical audit matters.

 

/s/ Dixon Hughes Goodman LLP

 

We have served as the Company’s auditor since 2020.

 

Atlanta, GA

April 6, 2021

 

 

RideNow Group and Affiliates

Combined Balance Sheets

December 31, 2020 and 2019

 

		2020				2019
ASSETS
Current assets
Cash and cash equivalents		$	3,905,686			$	4,980,718
Contracts in transit			10,736,791				10,554,704
Accounts receivable, net			10,023,174				9,851,225
Accounts receivable – related parties			84,535,861				34,211,546
Inventories, net			109,749,521				216,990,595
Prepaid expenses			1,625,109				1,775,528
Total current assets			220,576,142				278,364,316
Right-of-use assets			71,280,471				59,845,283
Property and equipment, net of accumulated depreciation			23,705,230				23,099,316
Goodwill			55,294,222				54,988,384
Note receivable – related party			1,264,425				1,184,043
Other non-current assets			288,758				732,250
Total Assets		$	372,409,248			$	418,213,592
LIABILITIES AND OWNERS’ EQUITY
Current liabilities
Accounts payable and accrued liabilities		$	36,806,476			$	31,587,231
Accounts payable – related parties			27,615,211				19,080,916
Floor plan notes payable			68,533,679				162,975,930
Revolving line of credit			-				18,000,000
Current portion of operating lease liabilities			15,755,805				14,693,192
Current portion of financing lease liabilities			4,059,496				3,163,199
Current portion of notes payable – related parties			504,000				6,569,584
Current portion of note payable – other			8,093,444				2,495,170
Total current liabilities			161,368,111				258,565,222
Long-term liabilities
Notes payable – related parties			6,907,322				7,499,949
Long-term portion of operating lease liabilities			57,473,929				47,244,420
Long-term portion of financing lease liabilities			14,550,947				13,464,666
Note payable- PPP loans			16,923,759				-
Note payable – other			985,052				6,856,727
Other long-term liabilities			4,779,112				6,820,000
Total liabilities			262,988,232				340,950,984
Owners’ equity			109,421,016				77,762,608
Total liabilities and owners’ equity		$	372,409,248			$	418,213,592

 

See accompanying Notes to Combined Financial Statements

 

 

RideNow Group and Affiliates

Combined Statements of Operations

For the Years Ended December 31, 2020 and 2019

 

		2020				2019
Revenue
New vehicles		$	515,823,974			$	397,717,879
Used vehicles			146,325,260				132,805,032
Service, parts and others			164,895,944				151,849,099
Finance and insurance, net			71,845,220				53,868,710
Total revenue			898,890,398				736,240,720
Cost of Sales
New vehicles			429,345,954				355,214,641
Used vehicles			122,306,144				116,104,217
Service, parts and others			91,017,529				83,372,418
Total cost of sales			642,669,627				554,691,276
Gross profit			256,220,771				181,549,444
Selling, general and administrative expenses			154,520,040				137,201,905
Depreciation and amortization expenses			4,087,914				3,752,922
Operating income			97,612,817				40,594,617
Other Income (Expense)
Floor plan interest expense			(3,051,930	)			(5,528,416	)
Interest expense – other			(3,904,879	)			(4,551,687	)
Interest income			840,454				986,756
Management fee expense			-				-
Miscellaneous income			1,126,614				1,215,627
Total other (expense)			(4,989,741	)			(7,877,720	)
Net income		$	92,623,076			$	32,716,897

 

See accompanying Notes to Combined Financial Statements

 

 

RideNow Group and Affiliates

Combined Statements of Owners’ Equity

For the Years Ended December 31, 2020 and 2019

 

		Owners’ Equity
Balance at December 31, 2018		$	69,563,076
Contributions			15,052,445
Distributions			(39,569,810	)
Net income			32,716,897
Balance at December 31, 2019		$	77,762,608
Contributions			6,406,309
Distributions			(67,370,977	)
Net income			92,623,076
Balance at December 31, 2020		$	109,421,016

 

See accompanying Notes to Combined Financial Statements

 

 

RideNow Group and Affiliates

Combined Statements of Cash Flows

For the Years Ended December 31, 2020 and 2019

 

		2020				2019
CASH FLOWS FROM OPERATING ACTIVITIES
Net Income		$	92,623,076			$	32,716,897
Adjustments to reconcile net income to net cash provided by operating activities:
Loss on disposal of property and equipment			270,722				47,486
Depreciation and amortization			4,087,914				3,752,922
Provision for allowance for doubtful accounts			130,989				(141,900	)
(Increase) decrease in assets, net of effects from business combinations:
Contracts in transit			(182,087	)			738,127
Accounts receivable			(302,938	)			(291,104	)
Accounts receivable – related parties			(50,324,315	)			(12,286,225	)
Inventories			111,209,190				(17,189,741	)
Prepaid expenses			150,420				(497,131	)
Other assets			466,736				(495,390	)
Increase (decrease) in liabilities, net of effects from business combinations:
Floor plan payable, net			(97,241,343	)			(5,894,357	)
Accounts payable			2,357,548				118,372
Payables to related parties			8,534,295				-
Accrued liabilities			(2,040,889	)			1,119,304
Net cash provided by operating activities			69,739,318				1,697,260
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of property and equipment			(2,101,473	)			(2,774,476	)
Proceeds from sale of property and equipment			106,289				239,189
Purchase of net assets through business combination			(1,748,842	)			(4,638,218	)
Net cash used in investing activities			(3,744,026	)			(7,173,505	)
CASH FLOWS FROM FINANCING ACTIVITIES
Issuance of notes receivables			(195,529	)			(437,480	)
Payments received on notes receivables			115,147				618,016
Proceeds from borrowings from related party			3,600,000				2,375,820
Payments of borrowings from related party			(10,258,211	)			(6,050,762	)
Net proceeds from vehicle Floor Plan payable - non-trade			-				16,765,713
Proceeds from revolving line of credit			13,000,000				65,000,000
Payments of revolving line of credit			(31,000,000	)			(47,000,000	)
Payments of borrowings from bank			(2,285,714	)			(2,437,004	)
Payments on other notes payable			(103,157	)			-
Proceeds from PPP loans			19,039,229				-
Net change in finance lease liabilities			1,982,579				(566,024	)
Contributions from owners			6,406,309				15,052,445
Distributions to owners			(67,370,977	)			(39,569,810	)
Net cash (used in) provided by financing activities			(67,070,324	)			3,750,914
DECREASE IN CASH AND CASH EQUIVALENTS			(1,075,032	)			(1,725,331	)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR			4,980,718				6,706,049
CASH AND CASH EQUIVALENTS AT END OF YEAR		$	3,905,686			$	4,980,718

 

See accompanying Notes to Combined Financial Statements

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

NOTE 1

SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Nature of Business

 

RideNow Group and Affiliates, a non-legal entity, (“RideNow” or “The Group” or the “Company”) is a collection of franchised dealerships operating in the powersports industry. The Group is engaged in the sale of new and used motorcycles, all-terrain vehicles, personal watercraft, other powersports vehicles, and related products and services, including repair and maintenance services, parts and accessories, riding gear, and apparel. As of December 31, 2020, RideNow owned and operated more than 45 retail dealerships in the United States, predominately in the Sunbelt region. The core brands sold by RideNow are Harley-Davidson, Honda, Yamaha, Kawasaki, Suzuki, Bombardier, Polaris, BMW, Ducati and Triumph, which are sold through franchise dealer agreements.

 

Basis of Presentation

 

The Combined Financial Statements include the accounts of the following affiliated companies: CMG Powersports Inc., America’s Powersports, Inc., Woods Fun Center, LLC, San Diego House of Motorcycles, LLC, APS of Oklahoma, LLC, APS of Georgetown, LLC, APS of Ohio, LLC, APS of Texas, LLC, C&W Motors, Inc., BJ Motorsports, LLC, Coyote Motorsports - Allen, LTD, Coyote Motorsports - Garland, LTD, East Valley Motorcycles, LLC, Glendale Motorcycles, LLC, JJB Properties, LLC, Metro Motorcycle, Inc., RideNow Carolina, LLC, RideNow, LLC, Ride USA, LLC, Top Cat Enterprises, LLC, Tucson Motorcycle, Inc., Tucson Motorsports, Inc., YSA Motorsports, LLC, RN Tri-Cities, LLC, ECHD Motorcycles, LLC, IOT Motorcycles, LLC, RideNow 6 Garland, LLC, RideNow Gainesville, LLC, RNKC, LLC, RNMC Daytona, LLC, TC Motorcycles, LLC, Ride Now 5 Allen, LLC, RHND Ocala, LLC and Bayou Motorcycles, LLC.

 

These combined financial statements were prepared on a combined basis using the accrual method of accounting. All transactions and accounts between and among the combined entities have been eliminated.

 

Use of Estimates

 

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. In preparing these financial statements, management has made its best estimates and judgments of certain amounts included in the financial statements. RideNow bases its estimates and judgments on historical experience and other assumptions that management believes are reasonable. However, application of these accounting policies involves the exercise of judgment and use of assumptions as to future uncertainties and, as a result, actual results could differ materially from these estimates. RideNow periodically evaluates estimates and assumptions used in the preparation of the financial statements and make changes on a prospective basis when adjustments are necessary. The critical accounting estimates made in the accompanying Combined Financial Statements include certain assumptions related to goodwill and other intangible assets. Other significant accounting estimates include certain assumptions related to long-lived assets, assets held for sale, accruals for chargebacks against revenue recognized from the sale of finance and insurance products, certain legal proceedings, and estimated tax liabilities. Actual results could differ from those estimates.

 

Reclassifications

 

Certain reclassifications have been made to the accompanying 2019 combined financial statements included herein to conform to the 2020 presentation. These reclassifications had no material effect on the financial position of RideNow.

 

Cash and Cash Equivalents

 

RideNow considers all highly liquid investments with a maturity of three months or less as of the date of purchase to be cash equivalents unless the investments are legally or contractually restricted for more than three months. Under RideNow’s cash management system, outstanding checks that are in excess of the cash balances at certain banks are included in Accounts Payable in the Combined Balance Sheets and changes in these amounts are reflected in operating cash flows in the accompanying Combined Statements of Cash Flows.

 

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

Inventories

 

Inventories, consisting of new units, are stated at the lower of cost or net realizable value on a specific identification basis. Parts and accessories inventories are stated at the weighted average cost. Used units and other inventories are stated at the lower of cost or wholesale net realizable values on a specific identification basis, as determined by management.

 

Credit Risk

 

Financial instruments which potentially subject RideNow to concentrations of credit risk consist principally of cash in financial institutions that, at times, may exceed FDIC insurance limits. At various times during the year, the cash in bank balances exceed the federally insured limits. Management believes there are no unusual risks associated with current depository institutions.

 

Credit risk with respect to accounts receivable is limited due to the large number of customers comprising RideNow’s customer base. RideNow performs ongoing credit evaluations of its customer’s financial condition and generally requires no collateral from its customers.

 

Contracts in Transit

 

Contracts in transit are proceeds to be received on sales contracts from financing institutions.

 

Accounts Receivable

 

Accounts receivable are uncollateralized obligations for major units, parts, service, and warranty work. Accounts receivable are stated at the invoice amount. Payments of accounts receivable are applied to the specific invoices identified on the customer’s remittance advice or, if unspecified, to the earliest unpaid invoice.

 

Factory receivables which are included in accounts receivable represent amounts due primarily from manufacturer holdbacks, rebates, co-op advertising, warranty, and supplier returns.

 

RideNow provides an allowance for doubtful accounts equal to estimated uncollectible amounts. RideNow’s estimate is based on historical collection experience and a review of the current status of accounts receivable. It is reasonably possible that RideNow’s estimate of the allowance for doubtful accounts will change. Bad debt expense is included as a component of general and administrative expenses in the Combined Statements of Income.

 

Property and Equipment

 

Property and equipment are recorded at cost and depreciated over the lesser of their estimated useful lives or lease terms, ranging from 3 to 20 years, using the straight-line method. Upon sale or retirement, the cost and related accumulated depreciation are eliminated from the respective accounts, and the resulting gain or loss is included in the results of operations. Repairs and maintenance charges that do not increase the useful lives of the assets are charged to operations as incurred.

 

Goodwill and Other Intangible Assets, net

 

RideNow acquisitions have resulted in the recording of goodwill and other intangible assets. Goodwill is an asset representing operational synergies, franchise rights and future economic benefits arising from other assets acquired in a business combination that are not individually identified and separately recognized. Other intangible assets represent non-compete agreements entered into with sellers from acquired businesses.

 

RideNow does not amortize goodwill. Goodwill is tested for impairment annually or more frequently when events or changes in circumstances indicate that impairment may have occurred. RideNow elected to perform a quantitative goodwill impairment test for its reporting units as of December 31, 2020 and 2019, and no goodwill impairment charges resulted from the testing.

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

Other intangible assets identified include non-compete agreements which are intangible assets with definite lives and are carried at the acquired fair values less accumulated amortization. The non-compete agreements are amortized over the estimate useful lives.

 

Impairment of Long-Lived Assets

 

RideNow reviews long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to undiscounted future cash flows expected to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying value of the assets exceeds the fair value of the assets. Assets to be disposed of are reported at the lower of the carrying amount, or the fair value less costs to sell.

 

Revenue Recognition

 

Revenue consists of the sales of new and used recreational vehicles, commissions from related finance and insurance products, sales of parts and services, and sale of other products. See Note 3 for a summary of the significant accounting policies related to revenue recognition.

 

Advertising

 

Advertising costs are expensed during the year in which they are incurred. Advertising expense for the years ended December 31, 2020 and 2019 was approximately $6,717,000 and $7,198,000, respectively.

 

Income Taxes

 

RideNow and its affiliates’ taxable income or loss is included in the tax returns of its shareholders. Therefore, no provision for income taxes is recorded in these Combined Financial Statements. RideNow has evaluated its tax positions and determined it has no uncertain tax positions as of December 31, 2020 and 2019.

 

Sales and Excise Tax

 

RideNow collects certain taxes from customers and remits to governmental authorities. RideNow’s accounting policy is to exclude the taxes collected and remitted to the governmental authorities from revenue and costs of sales.

 

Government Regulations

 

All of RideNow’s facilities are subject to federal, state, and local regulations relating to the discharge of materials into the environment. Compliance with these provisions has not had, nor does it expect such compliance to have, any material effect on the capital expenditures, net income, financial condition, or competitive position of RideNow. Management believes that its current practices and procedures for the control and disposition of such wastes comply with applicable federal and state requirements.

 

Recently Adopted Accounting Pronouncements

 

From time to time, new accounting pronouncements are issued by the Financial Accounting Standards Board (“FASB”) under its Accounting Standards Codification (“ASC”) or other standard setting bodies.

 

Revenue from Contracts with Customers

 

RideNow adopted ASU 2014-09 Revenue from Contracts with Customers and all subsequent amendments to the ASU, collectively referred to as Accounting Standards Codification (ASC) Topic 606, which (i) creates a single framework for recognizing revenue from contracts with customers that fall within its scope. RideNow’s goods and services that fall within the scope of Topic 606 are recognized as revenue when promised goods or services are transferred to customers in amounts that reflect the consideration to which RideNow expects to be entitled in exchange for those goods or services.

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

RideNow adopted the accounting standard effective January 1, 2018, using the modified retrospective approach applied only to contracts not completed as of the date of adoption, with no restatement of comparative periods recorded an increase to retained earnings of approximately $737,000.

 

Accounting for Leases

 

In February 2016, the Financial Accounting Standards Board (“FASB”) issued an accounting standard update (ASC Topic 842) that amends the accounting guidance on leases. The new standard establishes a right-of-use (ROU) model that requires a lessee to record an ROU asset and a lease liability on the balance sheet for all leases with terms longer than 12 months. Leases are classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. The FASB also subsequently issued amendments to the standard, including providing an additional and optional transition method to adopt the new standard, described below, as well as certain practical expedients related to land easements and lessor accounting.

 

The accounting standard update originally required the use of a modified retrospective approach reflecting the application of the standard to the leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements with the option to elect certain practical expedients. A subsequent amendment to the standard provides an additional and optional transition method that allows entities to initially apply the new leases standard at the adoption date and recognize a cumulative effect adjustment to the opening balance of retained earnings in the period of adoption. RideNow adopted this accounting standard effective January 1, 2018, using the optional transition method with no restatement of comparative periods.

 

RideNow elected certain practical expedients available under the transition guidance within the new standard, which among other things, allowed it to carry forward the historical lease classification of RideNow’s existing leases. RideNow did not elect the use-of-hindsight or the practical expedient pertaining to land easements; the latter not being applicable to RideNow. The new standard also provides practical expedients for an entity’s ongoing accounting. RideNow elected the short- term lease recognition exemption for all leases that qualify. As a result, for those leases that qualify, RideNow will not recognize ROU assets or lease liabilities, and RideNow did not recognize ROU asset or lease liabilities for existing short-term leases of those assets in transition. RideNow also elected the practical expedient to not separate lease and non-lease components of leases for the majority of RideNow classes of underlying assets.

 

NOTE 2

BUSINESS ACQUISITION

 

On May 4, 2020, RideNow closed on a business acquisition with Daytona Fun Machines, Inc., a Florida dealership, for a cash payment of $1,306,617 pursuant to an asset purchase agreement subject to adjustments for working capital and escrow provisions. Daytona Fun Machines, Inc. sells and services motorcycles, powersports and marine products manufactured by American Honda Motor Company, Yamaha Motor Corporation, Kawasaki Motors Corp. and Bombardier Recreational Products Inc. The acquisition qualified as a business combination and was accounted for using the acquisition method of accounting.

 

On May 5, 2020, RideNow closed on a business acquisition with Volusia Motorsports, Inc., a Florida dealership, for a cash payment of $442,225 pursuant to an asset purchase agreement subject to adjustments for working capital and escrow provisions. Volusia Motorsports, Inc. sells and services Polaris, Slingshot, KTM and Star EV motorcycles/scooters, all-terrain vehicles, utility vehicles and golf carts manufactured and distributed by Polaris Industries Inc., KTM North American, Inc. and JH Global Services, Inc. The acquisition qualified as a business combination and will be accounted for using the acquisition method of accounting.

 

During 2019, RideNow acquired the assets and assumed certain liabilities of Crystal Motorcycle Ocala LLC, in order to further expand operations in the Florida market. During 2018, RideNow acquired the assets and assumed certain liabilities of Cycle Mart LP, Deen Implement Co, and Moving Forward Arizona LLC in order to further expand operations in Texas and Arizona markets.

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

All acquisitions were accounted for as business combinations under the acquisition method of accounting. The results of operations of the acquired stores are included in the Combined Financial Statements from the date of acquisition.

 

The following table summarizes the consideration paid in cash for the acquisitions and the amount of identified assets acquired and liabilities assumed as of the acquisition date.

 

		2020				2019
Cash paid, net of cash acquired		$	1,748,842			$	4,638,218

 

Assets acquired and liabilities assumed for the year ended December 31,

 

		2020				2019
Cash		$	1,400			$	-
Inventories			3,968,116				2,627,975
Property and equipment			244,066				266,539
Other assets			-				102,700
Floor plan notes payables			(2,799,092	)			(2,245,471	)
Other liabilities			(18,063	)			(13,525	)
			1,396,427				738,218
Goodwill			352,415				3,900,000
		$	1,748,842			$	4,638,218

 

NOTE 3

REVENUE FROM CONTRACTS WITH CUSTOMERS

 

New and Used Recreational Vehicles

 

RideNow sells new and used recreational vehicles. The transaction price for a recreational vehicle sale is determined with the customer at the time of sale. Customers often trade in their own recreational vehicle to apply toward the purchase of a retail new or used recreational vehicle. The “trade-in” recreational vehicle is a type of noncash consideration measured at fair value, based on external and internal market data for a specific recreational vehicle, and applied as payment of the contract price for the purchased recreational vehicle.

 

When RideNow sells a new or used recreational vehicle, transfer of control typically occurs at a point in time upon delivery of the vehicle to the customer, which is generally at the time of sale, as the customer is able to direct the use of, and obtain substantially all benefits from the recreational vehicle at such time. RideNow does not directly finance its customer’s purchases or provide leasing. In many cases, RideNow arranges third- party financing for the retail sale or lease of recreational vehicles to customers in exchange for a fee paid to RideNow by a third-party financial institution. RideNow receives payment directly from the customer at the time of sale or from a third-party financial institution (referred to as contracts-in-transit) within a short period of time following the sale. RideNow establishes provisions, which are not significant, for estimated returns and warranties on the basis of both historical information and current trends.

 

Parts and Service

 

RideNow sells parts and vehicle services related to customer-paid repairs and maintenance, repairs and maintenance under manufacturer warranties and extended service contracts, and collision-related repairs. RideNow also sells parts through wholesale and retail counter channels.

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

Each repair and maintenance service is a single performance obligation that includes both the parts and labor associated with the vehicle service. Payment for each vehicle service work is typically due upon completion of the service, which is generally completed within a short period from contract inception. The transaction price for repair and maintenance services is based on the parts used, the number of labor hours applied, and standardized hourly labor rates. The performance obligation for repair and maintenance service are satisfied over time and create an asset with no alternative use and with an enforceable right to payment for performance completed to date. Revenue is recognized over time based on a direct measurement of labor hours, parts and accessories that are allocated to open service and repair orders at the end of each reporting period. As a practical expedient, the time value of money is not considered since repair and maintenance service contracts have a duration of one year or less. The transaction price for wholesale and retail counter parts sales is determined at the time of sale based on the quantity and price of each product purchased. Payment is typically due at time of sale, or within a short period following the sale. RideNow establishes provisions, which are not significant, for estimated parts returns based on historical information and current trends. Delivery method of wholesale and retail counter parts vary.

 

RideNow generally considers control of wholesale and retail counter parts to transfer when the products are shipped, which typically occurs the same day as or within a few days of sale. RideNow also offers customer loyalty points for parts and services for select franchises. RideNow satisfies its performance obligations and recognizes revenue when the loyalty points are redeemed. Amounts deferred related to the customer loyalty programs are insignificant.

 

Finance and Insurance

 

RideNow sells and receives commissions on the following types of finance and insurance products: extended service contracts, maintenance programs, guaranteed auto protection, tire and wheel protection, and theft protection products, among others. RideNow offers products that are sold and administered by independent third parties, including the vehicle manufacturers’ captive finance subsidiaries.

 

Pursuant to the arrangements with these third-party providers, RideNow sells the products on a commission basis. For the majority of finance and insurance product sales, RideNow’s performance obligation is to arrange for the provision of goods and services by another party. RideNow’s performance obligation is satisfied when this arrangement is made, which is when the finance and insurance product is delivered to the end customer, generally at the time of the vehicle sale. As agent, RideNow recognizes revenue in the amount of any fee or commission to which it expects to be entitled, which is the net amount of consideration that it retains after paying the third-party provider the consideration received in exchange for the goods or services to be fulfilled by that party.

 

RideNow’s customers are concentrated in the Sunbelt region. There are no significant judgements or estimates required in determining the satisfaction of the performance obligations or the transaction price allocated to the performance obligations. As revenue are recognized at a point-in-time, costs to obtain the customer (i.e. commissions) do not require capitalization.

 

Disaggregation of Revenue

 

The significant majority of RideNow’s revenue is from contracts with customers. In the following tables, revenue is disaggregated by major lines of goods and services and timing of transfer of goods and services. We have determined that these categories depict how the nature, amount, timing, and uncertainty of our revenue and cash flows are affected by economic factors.

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

Revenue from contracts with customers consists of the following:

 

		For the Year Ended December 31,
		2020				2019
Revenue:
New vehicle		$	515,823,974			$	397,717,879
Used vehicle			146,325,260				132,805,032
New and used vehicle			662,149,234				530,522,911
Service, parts and others			164,895,944				151,849,099
Finance and insurance, net			71,845,220				53,868,710
Total revenue		$	898,890,398			$	736,240,720
Timing of revenue recognition:
Goods and services transferred at a point in time		$	796,952,257			$	641,370,068
Goods and services transferred over time (1)			101,938,141				94,870,652
Total revenue		$	898,890,398			$	736,240,720

 

(1)

Represents revenue recognized during the period for vehicle repair and maintenance services.

 

NOTE 4

ACCOUNTS RECEIVABLE

 

Accounts receivable consisted of the following as of December 31,

 

		2020				2019
Trade receivables		$	3,145,226			$	2,830,500
Factory receivables			6,624,129				6,827,863
Other receivables			720,861				803,832
Total accounts receivables			10,490,216				10,462,195
Less: Allowance for doubtful accounts			(467,042	)			(610,970	)
Accounts receivables, net		$	10,023,174			$	9,851,225

 

NOTE 5

INVENTORIES AND VEHICLE FLOOR PLAN PAYABLES

 

Inventories consisted of the following as of December 31 are as follows:

 

		2020				2019
New vehicles		$	67,416,505			$	166,901,387
Used vehicles			22,225,209				26,634,590
Parts, accessories and other			20,107,807				23,454,618
Total cost		$	109,749,521			$	216,990,595

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

The components of vehicle Floor Plan payables at December 31 are as follows:

 

		2020				2019
Vehicle Floor Plan payable - trade		$	18,516,327			$	39,087,146
Vehicle Floor Plan payable – non-trade			50,017,352				123,888,784
Vehicle Floor Plan payable		$	68,533,679			$	162,975,930

 

Vehicle Floor Plan payable - trade reflects amounts borrowed to finance the purchase of specific new and, to a lesser extent, used vehicle inventories with the corresponding manufacturers’ captive finance subsidiaries (“trade lenders”). Vehicle Floor Plan payable-non-trade represents amounts borrowed to finance the purchase of specific new and, to a lesser extent, used vehicle inventories with non-trade lenders, as well as amounts borrowed under RideNow’s secured used vehicle Floor Plan facilities. Changes in vehicle Floor Plan payable- trade are reported as operating cash flows and changes in vehicle Floor Plan payable-non-trade are reported as financing cash flows in the accompanying Combined Statements of Cash Flows.

 

RideNow’s inventory costs are generally reduced by manufacturer holdbacks, incentives, Floor Plan assistance, and non-reimbursement-based manufacturer advertising rebates, while the related vehicle Floor Plan payables are reflective of the gross cost of the vehicle. The vehicle Floor Plan payables, as shown in the above table, will generally also be higher than the inventory cost due to the timing of the sale of a vehicle and payment of the related liability. Vehicle Floor Plan facilities are due on demand, but in the case of new vehicle inventories, are generally paid within several business days after the related vehicles are sold. Vehicle Floor Plan facilities are primarily collateralized by vehicle inventories and related receivables.

 

NOTE 6

PROPERTY AND EQUIPMENT, NET

 

The following table summarizes property and equipment, net of accumulated depreciation and amortization as of December 31:

 

		2020				2019
Equipment		$	4,231,451			$	5,084,165
Furniture and fixtures			19,307,497				18,422,739
Buildings			13,522,538				13,146,907
Vehicles			4,191,156				4,190,082
Leasehold improvements			10,296,570				9,907,006
Construction in progress			26,183				102,831
Total property and equipment			51,575,395				50,853,730
Less: Accumulated depreciation			(27,870,165	)			(27,754,414	)
Property and equipment, net		$	23,705,230			$	23,099,316

 

Depreciation and amortization expense for the years ended December 31, 2020 and 2019 was approximately $4,088,000 and $3,753,000, respectively.

 

NOTE 7

GOODWILL AND INTANGIBLE ASSETS, NET

 

RideNow’s acquisitions have resulted in the recording of goodwill and other intangible assets. Goodwill is an asset representing operational synergies, franchise rights and future economic benefits arising from other assets acquired in a business combination that are not individually identified and separately recognized. Other intangible assets represent non-compete agreements entered into with sellers from the acquired businesses and are not significant to the combined financial statements.

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

The changes in goodwill for the years ended December 31, 2020 and 2019 are as follows:

 

		Goodwill
Balance at December 31, 2018		$	51,088,384
Acquisitions			3,900,000
Impairments			-
Balance at December 31, 2019			54,988,384
Acquisitions			305,838
Impairments			-
Balance at December 31, 2020		$	55,294,222

 

NOTE 8

LINE OF CREDIT

 

RideNow has a $19,000,000 revolving line of credit established at a bank. RideNow participates in the line of credit with certain affiliates. Interest is payable monthly at the lesser of the prime rate (3.25% and 4.75% at December 31, 2020 and 2019, respectively) or LIBOR plus 2.75% (2.98% and 4.98% at December 31, 2020 and 2019, respectively). The line of credit is secured by substantially all of the assets of the participating affiliates. The line of credit has been amended and renewed multiple times under similar terms since its inception and has a maturity date of January 15, 2022. The outstanding balance on the line of credit was $-0- and $18,000,000 at December 31, 2020 and 2019, respectively.

 

NOTE 9

NOTES PAYABLE

 

The following consist of a note payable to a bank and other third-parties as of December 31:

 

		2020				2019
Northern Trust Bank term loan agreement that requires monthly principal payments of approximately $190,500 and accrues interest at the one-month LIBOR plus 2.0%. This loan is guaranteed by the owners of CMG Powersports, Inc. and matures July 1, 2021.		$	5,714,286			$	8,000,000
Unsecured note payable to P&D Motorcycles in the original amount of $1,724,000 with an interest rate of 4% and note payable matures on July 1, 2022			1,248,740				1,351,897
PPP Loans dated April 6, 2020. Payments of principal and interest were deferred until August 6, 2021, at which time the Companies will make equal payments of principal and interest through maturity, which is April 6, 2026.			19,039,229				-
			26,002,255				9,351,897
Less: Current maturities			(8,093,444	)			(2,495,170	)
Long-term maturities of note payables - bank		$	17,908,811			$	6,856,727

 

The future maturities of long-term note payables to other as of December 31, 2020:

 

2021		$	8,093,444
2022			5,286,583
2023			5,852,725
2024			5,077,128
2025			1,692,375
Total of long-term notes payable - other		$	26,002,255

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

Note Payable to Northern Trust Bank

 

RideNow is a collective borrower to a $16,000,000 term loan agreement with Northern Trust Bank held by CMG Powersports, Inc. The term loan agreement requires monthly principal payments of approximately $190,500 and accrues interest at the one-month LIBOR plus 2.0%. This loan is guaranteed by the owners of CMG Powersports, Inc. The term loan includes required covenants to be met. Management believes RideNow is in compliance with these covenants as of and for the years ended December 31, 2020 and 2019. For the years ended December 31, 2020 and 2019 interest expense was $277,470 and $377,855, respectively.

 

Note Payable to P&D Motorcycles

 

On June 28, 2017 TC Motorcycles, LLC “DBA–RideNow Powersports Jacksonville” (the buyer) entered into a promissory note with P&D Motorcycles (the seller) as part of an acquisition. The original principal sum was $1,724,000 accruing interest at 4% including 59 monthly payments of $17,454 with final balloon payment due July 1, 2022

 

PPP Loan

 

On April 6, 2020, RideNow entered into loan agreements and related promissory notes (the “SBA Loan Documents”) to receive U.S. Small Business Administration Loans (the “SBA Loans”) pursuant to the Paycheck Protection Program (the “PPP”) established under the CARES Act, in the aggregate amount of $19,039,229 (the “Loan Proceeds”). The Companies received the Loan Proceeds on April 6, 2020, and under the SBA Loan Documents, the SBA Loans had an initial maturity date of April 5, 2022 and an annual interest rate of 0.98%. Payment of principal and interest, to be paid monthly, on the PPP Loans can be prepaid by the Companies at any time and was originally deferred through October 5, 2020. On October 7, 2020, the Small Business Administration published guidance of its interpretation of the CARES ACT and of the Paycheck Protection Program Interim Final Rules that indicates, pursuant to the PPP Flexibility Act of 2020, the deferral period for borrower payments of principal, interest and fees on all PPP was extended 10 months after the borrower’s loan forgiveness period. Additionally, the SBA lender agreed to extend the maturity pursuant to the Interim Final Rules. As a result, monthly equal payments of principal and interest will begin August 6, 2021, with the last payment due April 6, 2025.

 

NOTE 10

LEASES

 

General description

 

The significant majority of leases that RideNow enters into are for real estate. RideNow leases numerous facilities relating to RideNow’s operations, including primarily for vehicle showrooms, display lots, service facilities, collision repair centers, supply facilities, vehicle storage lots, parking lots, offices, and RideNow’s corporate headquarters. Leases for real property have terms ranging from one to twenty-five years. RideNow also leases various types of equipment, including security cameras, diagnostic equipment, copiers, key-cutting machines, and postage machines, among others. Equipment leases generally have terms ranging from one to five years.

 

RideNow’s lease agreements do not contain any material residual value guarantees or material restrictive covenants. RideNow does not have any significant leases that have not yet commenced but that create significant rights and obligations for us. RideNow has elected the practical expedient under ASC Topic 842 to not separate lease and non-lease components for the following classes of underlying assets: real estate, office equipment, service loaner vehicles, and marketing-related assets (e.g., billboards).

 

RideNow’s real estate and equipment leases often require that RideNow pay maintenance in addition to rent. Additionally, RideNow’s real estate leases generally require payment of real estate taxes and insurance. Maintenance, real estate taxes, and insurance payments are generally variable and based on actual costs incurred by the lessor. Therefore, these amounts are not included in the consideration of the contract when determining the right-of-use (“ROU”) asset and lease liability but are reflected as variable lease expenses for those classes of underlying assets for which RideNow has elected the practical expedient to not separate lease and non-lease components. Leases with an initial term of 12 months or less are not recorded on the balance sheet; RideNow recognizes lease expense for these leases on a straight-line basis over the lease term. RideNow rents or subleases certain real estate to third parties, which are primarily operating leases.

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

Variable lease payments

 

A majority of RideNow’s lease agreements include fixed rental payments. Certain of RideNow’s lease agreements include fixed rental payments that are adjusted periodically for changes in the Consumer Price Index (“CPI”). Payments based on a change in an index, or a rate are not considered in the determination of lease payments for purposes of measuring the related lease liability. While lease liabilities are not remeasured because of changes to the CPI, changes to the CPI are treated as variable lease payments and recognized in the period in which the obligation for those payments are incurred.

 

Options to extend or terminate leases

 

Most of RideNow’s real estate leases include one or more options to renew, with renewal terms that can extend the lease term from one to five years or more. The exercise of lease renewal options is at RideNow’s sole discretion. If it is reasonably certain that RideNow will exercise such options, the periods covered by such options are included in the lease term and are recognized as part of RideNow’s ROU assets and lease liabilities. Certain leases also include options to purchase the leased property. The depreciable life of assets and leasehold improvements are limited by the expected lease term unless there is a transfer of title or purchase option reasonably certain of exercise.

 

Discount rate

 

For the incremental borrowing rate, RideNow generally uses a portfolio approach to determine the discount rate for leases with similar characteristics. RideNow determines discount rates based on current market prices of instruments similar to RideNow’s unsecured borrowings with maturities that align with the relevant lease term, and such rates are then adjusted for RideNow’s credit spread and the effects of full collateralization.

 

Balance Sheet Presentation

 

The following consist of leases related assets and liabilities as of December 31:

 

Leases		Classification		2020				2019
Assets:
Operating		Operating lease assets		$	71,280,471			$	59,845,283
Finance		Property and Equipment, net			12,336,146				10,805,089
Total right-of-use assets				$	83,616,617			$	70,650,372
Liabilities
Current
Operating		Current portion of operating lease liabilities		$	15,755,805			$	14,693,192
Finance		Current portion of finance lease liabilities			3,967,670				3,163,199
Non-Current
Operating		Long-term portion of operating lease liabilities			57,473,929				47,244,420
Financing		Long-term portion of finance lease liabilities			14,642,774				13,464,666
Total lease liabilities				$	91,840,178			$	78,565,477

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

Lease Term and Discount Rate

 

The following consists of the lease terms and discount rates as of December 31:

 

		2020				2019
Weighted Average Lease Term - Operating Leases			6.4 years				5.9 years
Weighted Average Lease Term - Finance Leases			10.0 years				9.6 years
Weighted Average Discount Rate - Operating Leases			3.0	%			3.0	%
Weighted Average Discount Rate - Finance Leases			24.2	%			18.1	%

 

Lease Costs

 

The following table provides certain information related to the lease costs for finance and operating leases for the years ended December 31:

 

Lease Cost		Classification		2020				2019
Operating lease costs		Selling, general and administrative expenses		$	16,319,257			$	14,995,468
Finance lease costs:
Amortization of ROU assets		Depreciation and Amortization			1,170,909				1,170,909
Interest on lease liabilities		Floor plan interest and other interest expense			2,714,108				2,810,138
*Variable lease costs		Selling, general and administrative expenses			4,814,249				1,067,513
				$	25,018,523			$	20,044,028

 

*

Variable Lease Cost includes the following:

-

Short term lease costs, which are immaterial.

-

Sales tax, CAM charges, and CPI adjustments.

 

Supplemental Cash Flow Information

 

The following table presents supplemental cash flow information for leases for the year ended December 31:

 

		2020				2019
Cash paid for amounts included in the measurements of lease liabilities:
Operating cash flows from operating leases		$	16,433,493			$	15,342,746
Operating cash flows from finance leases		$	2,714,108			$	2,810,138
Financing cash flows from finance leases		$	719,386			$	566,024
Right-of-use assets obtained in exchange for new:
Operating lease liabilities		$	15,211,272			$	22,482,942
Finance lease liabilities		$	2,701,966			$	-
Non-cash reduction in right-of-use assets and lease liabilities from modification to operating leases:		$	11,768,897			$	-

 

RideNow leases facilities under operating leases expiring through January 2029. The leases require varying monthly payments ranging from $3,900 to $79,000.

 

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

Future minimum payments under these commitments as of December 31, 2020 are as follows:

 

		Operating Leases				Finance Leases
Year Ending December 31,
2021		$	15,755,805			$	4,059,496
2022			14,967,869				4,393,205
2023			13,270,537				4,454,856
2024			11,435,302				4,511,215
2025			7,354,293				4,567,841
Thereafter			17,401,262				28,036,897
Total lease payments			80,185,068				50,023,509
Less: Interest			(6,955,334	)			(31,413,067	)
Present value of lease liabilities		$	73,229,734			$	18,610,443
Current portion of lease liabilities		$	15,755,805			$	4,059,496
Long-term portion of lease liabilities			57,473,929				14,550,947
		$	73,229,734			$	18,610,443

 

Lease expense charged to operations was $16,319,257 and $14,995,468 for the years ended December 31, 2020 and 2019, respectively.

 

NOTE 11

RELATED PARTY TRANSACTIONS

 

Due from (to) related parties consist of the following balances as of December 31,

 

		2020				2019
Accounts receivable-related parties		$	84,535,861			$	34,211,546
Notes receivable – related parties			1,264,425				1,184,043
Total balances due from related parties		$	85,800,286			$	35,395,589
Accounts payable – related parties		$	27,615,211			$	19,080,916
Notes payable – related parties			7,411,322				14,069,533
Total balances due to related parties		$	35,026,533			$	33,150,449

 

Accounts Receivable and Payables

 

Receivables Due from Related Parties

 

		2020				2019
Cash sweep receivables		$	84,478,128			$	28,555,340
Other receivables due from related parties			57,733				5,656,206
Total receivables due from related parties		$	84,535,861			$	34,211,546

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

 

Cash Sweep Account Receivables/Payables

 

RideNow is a participant in a Cash Sweep Account arrangement with a bank and its affiliates. The Cash Sweep Account combines the cash balances of all the participating affiliates and invests excess cash on a daily basis. Interest is paid to each participant based on the average cash balance in the Cash Sweep account over the course of the year. Any participant that develops an overdraft cash balance is charged interest. For the years ended December 31, 2020 and 2019, the Cash Sweep Account was earning interest at 1.10% and 3.11%, respectively, and for overdraft balances, the interest charged was 3.25% and 3.50%, respectively.

 

Cash Sweep Accounts:		2020				2019
Related party receivable		$	84,478,128			$	28,555,340
Related party payable			(27,956,598	)			(14,087,220	)
Net Cash Sweep Account Balance		$	56,521,530			$	14,468,120

 

Payables Due to Related Parties

 

		2020				2019
Cash sweep payables		$	27,956,598			$	14,087,220
Other payables due to related parties			(341,387	)			4,993,696
Total payables due to related parties		$	27,615,211			$	19,080,916

   

Notes payable – Related Parties

 

The following table summarizes the notes payable to related parties as of December 31:

 

		2020				2019
Various unsecured notes payable to Steele IV, LLLP, a related party through common ownership; monthly principal payments range from $10,000 to $20,000; interest accruing at rates ranging from LIBOR + 1.3% to LIBOR + 2.0%		$	3,000,000			$	5,744,265
Various unsecured notes payable to RideNow Management, LLLP, a related party through common ownership; monthly principal payments ranging from $7,000 to $13,500; interest accruing at rates ranging from LIBOR + 0.6% to LIBOR + 1.3%.			1,411,322				3,277,639
Various unsecured notes payable to Denex, LLLP, a related party through common ownership; monthly principal payments ranging from $10,000 to $20,000 interest accruing at rates ranging from LIBOR + 0.5% to LIBOR + 2.0%.			3,000,000				5,047,629
Total			7,411,322				14,069,533
Less: Current maturities			(504,000	)			(6,569,584	)
Long-term maturities due to related party		$	6,907,322			$	7,499,949

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

The future maturities of long-term note payables to related parties as of December 31, 2020:

 

2021		$	504,000
2022			504,000
2023			6,403,322
Total maturities of long-term notes payable – related parties		$	7,411,322

 

Related Party Leases

 

Included in the leases discussed above in Note 10 are leases for twenty-five (25) locations which are owned by the owners of RideNow or their affiliates. Lease expense charged to operations in connection with these related party leases was $10,126,669 and $8,715,266 for the years ended December 31, 2020 and 2019, respectively.

 

The following table provides the future minimum lease payments under these commitments, as presented above, scheduled in connection with related party are as follows:

 

Maturity of Related Party Lease Liabilities		2020
2020		$	13,208,380
2021			13,129,530
2022			12,415,862
2023			11,860,080
2024			9,577,251
Thereafter			41,387,884
Total lease payments			101,578,987
Less: Interest			(35,522,714	)
Present value of lease liabilities		$	66,056,273

 

Shared Services

 

RideNow receives administrative support from RideNow Management, LLLP and Coulter Management Group, LLLP, which are related parties due to common ownership. Total administrative services received from these entities and charged to operations were $731,089 and $450,454 for the years ending December 31, 2020 and 2019, respectively.

 

NOTE 12

SUPPLEMENTAL CASH FLOW INFORMATION

  

The following table includes supplemental cash flow information, including noncash investing and financing activity for the years ended December 31,

 

		2020				2019
Cash paid for interest		$	6,628,351			$	10,102,590
Non-cash activities:
Non-cash issuance of noncontrolling interest			-			$	125,000
Non-cash purchase of noncontrolling interest and release of related party receivable			-			$	634,552
Non-cash equity contributions		$	223,389			$	613,964

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

NOTE 13

RETIREMENT PLAN

 

RideNow maintains a 401(k) plan (the Plan) covering substantially all employees who are over the age of 21 and meet specified service requirements. Participants may voluntarily contribute to the Plan, not to exceed the maximum limits imposed by the Internal Revenue Service regulations. Contributions to the Plan are made by the participants to their individual accounts through payroll withholding. Additionally, RideNow provides a matching contribution of 25% up to the first 6% of participants’ annual earnings with a maximum of $2,000 annually. RideNow’s contribution to the Plan was $563,624 and $613,270 for the years ended December 31, 2020 and 2019, respectively.

 

NOTE 14

CONTINGENCIES

 

From time to time, RideNow is contingently liable in respect to lawsuits and claims incidental to the ordinary course of its operations. Management has determined that the outcome of any such matters will not have a material effect on the Combined Financial Statements. No provision has been made in the accompanying Combined Financial Statements for losses, if any, that might result from the ultimate outcome of such matters.

 

Coronavirus Pandemic (COVID-19)

 

Subsequent to year-end, the World Health Organization declared the spread of Coronavirus Disease (COVID- 19) a worldwide pandemic. The COVID-19 pandemic is having significant effects on global markets, supply chains, businesses, and communities. Specific to RideNow, COVID-19 may impact various parts of its 2020 operations and financial results. Management believes RideNow is taking appropriate actions to mitigate the negative impact. However, the full impact of COVID-19 is unknown and cannot be reasonably estimated at December 31, 2020 and 2019.

 

NOTE 15

BUSINESS AND CREDIT CONCENTRATIONS

 

Financial instruments that potentially subject us to concentrations of credit risk consist principally of cash on deposit with financial institutions. At times, amounts invested with financial institutions exceed Federal Deposit Insurance Corporation insurance limits. Concentrations of credit risk with respect to receivables are limited primarily to receivables from powersports manufacturers or distributors which RideNow holds franchises, totaling approximately $6,624,000 and $6,828,000 at December 31, 2020 and 2019, respectively.

 

RideNow is subject to a concentration of risk in the event of financial distress or other adverse events related to any of the manufacturers whose franchised dealerships are included in RideNow’s brand portfolio. RideNow purchases new vehicle inventory from various powersports manufacturers at the prevailing prices available to all franchised dealerships. In addition, RideNow finances a substantial portion of its new vehicle inventory with manufacturer-affiliated finance companies. RideNow’s results of operations could be adversely affected by the manufacturers’ inability to supply RideNow dealerships with an adequate supply of new vehicle inventory and related floor plan financing. RideNow also has concentrations of risk related to the geographic markets in which RideNow dealerships operate. Changes in overall economic, retail powersports or regulatory environments in one or more of these markets could adversely impact the results of RideNow’s operations.

 

Concentrations of credit risk with respect to non-manufacturer trade receivables are limited due to the wide variety of customers and markets in which RideNow’s products are sold as well as their dispersion across many different geographic areas in the United States. Consequently, at December 31, 2020, RideNow does not consider itself to have any significant non-manufacturer concentrations of credit risk.

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

NOTE 16

FINANCIAL INSTRUMENTS AND FAIR VALUE MEASUREMENTS

 

The fair value of a financial instrument represents the amount at which the instrument could be exchanged in a current transaction between willing parties, other than in a forced sale or liquidation. Fair value estimates are made at a specific point in time, based on relevant market information about the financial instrument. These estimates are subjective in nature and involve uncertainties and matters of judgment, and therefore cannot be determined with precision.

 

Accounting standards define fair value as the price that would be received from selling an asset or paid to transfer a liability in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants at the measurement date. Accounting standards establish a fair value hierarchy which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value and also establishes the following three levels of inputs that may be used to measure fair value:

 

Level 1 Quoted prices in active markets for identical assets or liabilities

 

Level 2 Observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities; quoted market prices in markets that are not active; or model-derived valuations or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.

 

Level 3 Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.

 

The following methods and assumptions were used by us in estimating fair value disclosures for financial instruments:

 

●

Cash and cash equivalents, receivables, other current assets, vehicle Floor Plan payable, accounts payable, other current liabilities, and variable rate debt: The amounts reported in the accompanying Combined Balance Sheets approximate fair value due to their short-term nature or the existence of variable interest rates that approximate prevailing market rates.

 

●

Fixed rate long-term debt: RideNow’s fixed rate long-term debt consists primarily of amounts outstanding under its senior unsecured notes. The amounts reported in the accompanying Combined Balance Sheets approximate fair value due to its senior unsecured notes using quoted prices for the identical liability (Level 1).

 

Nonfinancial assets such as goodwill, other intangible assets, and long-lived assets held and used are measured at fair value when there is an indicator of impairment and recorded at fair value only when impairment is recognized or for a business combination. The fair values less costs to sell of long-lived assets or disposal groups held for sale are assessed each reporting period they remain classified as held for sale. Subsequent changes in the held for sale long-lived asset’s or disposal group’s fair value less cost to sell (increase or decrease) are reported as an adjustment to its carrying amount, except that the adjusted carrying amount cannot exceed the carrying amount of the long-lived asset or disposal group at the time it was initially classified as held for sale.

 

NOTE 17

SEGMENT INFORMATION

 

As of December 31, 2020, and 2019, RideNow had two operating segments: (1) Harley-Davidson motor sports dealerships and (2) Metric motor sports dealerships (representing all Non-Harley-Davidson motor sports dealerships). RideNow’s Harley-Davidson dealership segment is comprised of retail franchises that sell new and used motorcycles and related accessories, riding gear and apparel, replacement parts, equipment repair and maintenance services, and also arrange for the delivery of finance and insurance products through third party providers. RideNow’s Metric dealerships segment is comprised of retail franchises that sell new and used motorcycles (non-Harley-Davidson) and other motor sports equipment, including all-terrain vehicles, utility terrain vehicles, boats, personal watercraft, snowmobiles and scooters from manufacturers such as Honda, Yamaha, Kawasaki, Suzuki, Bombardier, Polaris, BMW, Ducati and Triumph. Additionally, dealerships in RideNow’s Metric segment sell related products and services, including repair and maintenance services and also arrange for the delivery of finance and insurance products through third party providers.

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

 

RideNow has determined that the operating segments also represent the reportable segments. The reportable segments identified above are the business activities of RideNow for which discrete financial information is available and for which operating results are regularly reviewed by the chief operating decision maker to assess operating performance and allocate resources. RideNow’s chief operating decision maker is comprised of its two owners, who are also RideNow’s (1) Chairman of the Board and (2) Chief Executive Officer.

 

The following tables provide reportable segment revenue, gross profit, Floor Plan interest expense, segment income and inventories:

 

		2020
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
Revenue		$	226,652,843			$	672,237,556			$	898,890,399
Gross Profit		$	67,432,653			$	188,788,118			$	256,220,771
Gross profit %			29.9	%			28.1	%			28.6	%
Floor Plan interest expense		$	930,726			$	2,121,204			$	3,051,930
Segment income%			0.4	%			0.3	%			0.3	%
Segment income (1)		$	17,990,848			$	76,570,039			$	94,560,887
Segment income %			8.0	%			11.4	%			10.5	%
Inventories		$	22,366,902			$	87,382,619			$	109,749,521

 

		2019
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
Revenue		$	220,621,113			$	515,619,607			$	736,240,720
Gross Profit		$	60,788,862			$	120,760,582			$	181,549,444
Gross profit %			27.6	%			23.4	%			24.7	%
Floor Plan interest expense		$	1,017,392			$	4,511,024			$	5,528,416
Segment income%			0.5	%			0.9	%			0.8	%
Segment income (1)		$	11,623,250			$	23,223,398			$	34,846,648
Segment income %			5.3	%			4.5	%			4.7	%
Inventories		$	53,477,090			$	163,513,505			$	216,990,595

 

(1)

Segment income represents income for each reportable segment and is defined as income from operations less Floor Plan interest expense, which is the measure by which management allocates resources to its segments.

 

 

RideNow Group and Affiliates

Notes to Combined Financial Statements

December 31, 2020 and 2019

  

The following is a reconciliation of the total of the reportable segments’ segment income to the combined net income:

 

		2020				2019
Reportable segment income		$	94,560,887			$	34,846,648
Corporate operating income/expense			-				219,553
Other interest expense			(3,904,879	)			(4,551,687	)
Interest income			840,454				986,756
Miscellaneous income			1,126,614				1,215,627
Combined net income		$	92, 623,076			$	32,716,897

 

The following tables provide revenue by products and services:

 

		2020
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
New vehicles		$	71,867,922			$	443,956,052			$	515,823,974
Used vehicles			82,031,841				64,293,419				146,325,260
Service, parts and other			56,951,705				107,944,239				164,895,944
Finance and insurance income			15,801,375				56,043,846				71,845,221
		$	226,652,843			$	672,237,556			$	898,890,399

 

		2019
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
New vehicles		$	79,738,881			$	317,978,998			$	397,717,879
Used vehicles			68,871,728				63,933,304				132,805,032
Service, parts and other			57,515,708				94,333,391				151,849,099
Finance and insurance income			14,494,796				39,373,914				53,868,710
		$	220,621,113			$	515,619,607			$	736,240,720

 

NOTE 18

SUBSEQUENT EVENTS

 

RideNow Transaction

 

On March 12, 2021, RumbleOn, Inc. announced a definitive agreement to combine with RideNow Group to create the only omnichannel customer experience in powersports and the largest publicly traded powersports dealership platform (the “RideNow Transaction”). Under the terms of the definitive agreement, RumbleOn will combine with up to 46 entities operating under the RideNow brand for a total consideration of up to $575.4 million, consisting of $400.4 million of cash and approximately 5.8 million shares of RumbleOn Class B Common Stock. RumbleOn will finance the cash consideration through a combination of up to $280.0 million of debt and the remainder through the issuance of new equity. RumbleOn has entered into a commitment letter with Oaktree Capital Management, L.P. ( “Oaktree”) to provide for the debt financing, subject to certain conditions (the “Oaktree Financing”). The number of shares to be issued to RideNow is subject to increase as described in the definitive agreement. The RideNow Transaction is subject to successful completion of the debt and equity financing, RumbleOn stockholder approval, manufacturer approval, other federal and state regulatory approvals, and other customary closing conditions as described in the definitive agreement. We expect to close the RideNow Transaction during the second or third quarter of 2021.

 

Business Combinations

 

On March 16, 2021, RideNow entered into a management agreement on a business with Beach Boulevard Motorsports 2015, LLC, a Florida  dealership to take over daily operations effective April 1, 2021.  Commensurate with the management agreement RideNow entered into an asset purchase agreement and are working towards closing the transaction within the next 60-90 days.  The purchase price consists of Fixed Assets $250,000, Goodwill $3,725,000, Non-Competition $25,000 and agreed upon values for all inventories including parts, accessories, work-in-process, new and used vehicles and assumption of certain liabilities.  The target dealership fits in nicely to the RideNow Sunbelt growth strategy adding to its successful fleet of dealerships located in Florida.  The target dealership currently carries the following powersports and marine brands:  Yamaha, Suzuki, KTM, Zero Motorcycles, Ranger Boats, Yamaha Jet Boats, and Tide Water Boats.

 

 

Page 24 of 25

Exhibit 99.4

 

 

 

 

 

 

 

RIDENOW GROUP AND AFFILIATES

COMBINED FINANCIAL STATEMENTS

 

YEARS ENDED DECEMBER 31, 2019 AND 2018

 

 

 

 

 

 

 

 

 

 

RideNow Group and Affiliates

Table of Contents

Years Ended December 31, 2019 and 2018

 

Report of Independent Registered Public Accounting Firm	1
Combined Financial Statements
Combined Balance Sheets	2
Combined Statements of Income	3
Combined Statements of Owners’ Equity	4
Combined Statements of Cash Flows	5-6
Notes to Combined Financial Statements	7

 

 

Report of Independent Registered Public Accounting Firm

 

To the Boards of Directors and Management of

RideNow Group and Affiliates

Chandler, Arizona

 

Opinion on the Financial Statements

 

We have audited the accompanying combined balance sheets of RideNow Group and Affiliates (the “Company”) as of December 31, 2019 and 2018, and the related combined statements of income, changes in owners’ equity, and cash flows for the years then ended, and the related notes to the combined financial statements. In our opinion, the combined financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2019 and 2018, and the results of their operations and cash flows for the years then ended, in accordance with accounting principles generally accepted in the United States of America.

 

Basis for Opinion

 

These combined financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s combined financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audits in accordance with the standards of the PCAOB and in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the combined financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the combined financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the combined financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the combined financial statements. We believe that our audits provide a reasonable basis for our opinion.

 

/s/Dixon Hughes Goodman LLP

 

We have served as the Company’s auditor since 2020.

 

Atlanta, Georgia

February 12, 2021

 

 

RIDENOW GROUP AND AFFILIATES

COMBINED BALANCE SHEETS

YEARS ENDED DECEMBER 31, 2019 AND 2018

 

		2019				2018
ASSETS
Current assets
Cash and cash equivalents		$	4,980,718			$	6,706,049
Contracts in transit			10,554,704				11,292,831
Accounts receivable, net			9,851,225				9,418,221
Accounts receivable – related parties			34,211,546				21,925,321
Inventories, net			216,990,595				197,172,879
Prepaid expenses			1,775,528				1,625,724
Total current assets			278,364,316				248,141,025
Right-of-use assets			59,845,283				51,270,811
Property and equipment, net of accumulated depreciation			23,099,316				24,097,898
Goodwill			54,988,384				51,088,384
Note receivable – related party			1,184,043				1,364,579
Other non-current assets			732,250				134,160
Total Assets		$	418,213,592			$	376,096,857
LIABILITIES AND OWNERS’ EQUITY
Current liabilities
Floor plan notes payable		$	162,975,930			$	149,859,103
Accounts payable			12,565,588				12,925,641
Payables to related parties			19,080,916				19,466,490
Accrued and other current liabilities			19,021,643				17,888,864
Revolving line of credit			18,000,000				-
Current portion of operating lease liabilities			14,693,192				13,981,772
Current portion of financing lease liabilities			3,163,199				3,109,558
Current portion of notes payable – related parties			6,569,584				1,816,681
Current portion of note payable – bank			2,285,714				2,285,714
Current portion of note payable – other			209,456				151,290
Total current liabilities			258,565,222				221,485,113
Long-term liabilities
Long-term portion of operating lease liabilities			47,244,420				39,728,645
Long-term portion of financing lease liabilities			13,464,666				14,084,331
Notes payable – related parties			7,499,949				15,927,795
Notes payable – bank, less current portion			5,714,286				8,000,000
Notes payable – other, less current portion			1,142,441				1,351,897
Other long-term liabilities			6,820,000				5,956,000
Total liabilities			340,450,984				306,533,781
Owners’ equity			77,762,608				69,563,076
Total liabilities and owners’ equity		$	418,213,592			$	376,096,857

  

See accompanying Notes to Combined Financial Statements.

 

 

RIDENOW GROUP AND AFFILIATES

COMBINED STATEMENTS OF INCOME

YEARS ENDED DECEMBER 31, 2019 AND 2018

 

		2019				2018
Revenue
New vehicles		$	397,717,879			$	389,346,760
Used vehicles			132,805,032				113,616,255
Service, parts and others			151,849,099				146,211,431
Finance and insurance, net			53,868,710				50,180,259
Total revenue			736,240,720				699,354,705
Cost of Sales
New vehicles			355,214,641				344,534,573
Used vehicles			116,104,217				100,863,191
Service, parts and others			83,372,418				81,383,081
Total cost of sales			554,691,276				526,780,845
Gross profit			181,549,444				172,573,860
Selling, general and administrative expenses			137,201,905				128,929,516
Depreciation and amortization expenses			3,752,922				3,868,513
Operating income			40,594,617				39,775,831
Other Income (Expense)
Floor plan interest expense			(5,528,416	)			(4,147,134	)
Interest expense – other			(4,551,687	)			(4,416,800	)
Interest income			986,756				721,953
Management fee expense			-				(672,256	)
Miscellaneous income			1,215,627				440,687
Total other income (expense)			(7,877,720	)			(8,073,550	)
Net income		$	32,716,897			$	31,702,281

 

See accompanying Notes to Combined Financial Statements.

 

 

RIDENOW GROUP AND AFFILIATES

COMBINED STATEMENTS OF OWNERS’ EQUITY

YEARS ENDED DECEMBER 31, 2019 AND 2018

 

		Owners’ Equity
Balance at December 31, 2017		$	39,878,779
Contributions			2,640,541
Distributions			(4,658,525	)
Net income			31,702,281
Balance at December 31, 2018			69,563,076
Contributions			15,052,445
Distributions			(39,569,810	)
Net income			32,716,897
Balance at December 31, 2019		$	77,762,608

 

See accompanying Notes to Combined Financial Statements.

 

 

RIDENOW GROUP AND AFFILIATES

COMBINED STATEMENTS OF CASH FLOWS

YEARS ENDED DECEMBER 31, 2019 AND 2018 

 

		2019				2018
CASH FLOWS FROM OPERATING ACTIVITIES
Net Income		$	32,716,897			$	31,702,281
Adjustments to reconcile net income to net cash provided by operating activities:
Loss on disposal of property and equipment			47,486				158,699
Depreciation and amortization			3,752,922				3,868,513
Provision for allowance for doubtful accounts			(141,900	)			301,255
(Increase) decrease in assets, net of effects from business combinations:
Contracts in transit			738,127				(2,374,176	)
Accounts receivable			(291,104	)			(2,607,288	)
Accounts receivable – related parties			(12,286,225	)			315,164
Inventories			(17,189,741	)			(39,218,736	)
Prepaid expenses			(497,131	)			726,301
Other assets			(495,390	)			206,735
Increase (decrease) in liabilities, net of effects from business combinations:
Vehicle floor plan payable – trade, net			(5,894,357	)			2,644,842
Accounts payable			118,372				(14,487,749	)
Accrued liabilities			1,119,304				(1,406,882	)
Net cash provided by operating activities			1,697,260				(20,171,041	)
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of property and equipment			(2,774,476	)			(1,972,391	)
Proceeds from sale of property and equipment			239,189				72,175
Purchase of net assets through business combination			(4,638,218	)			(5,366,161	)
Net cash used in investing activities			(7,173,505	)			(7,266,377	)
CASH FLOWS FROM FINANCING ACTIVITIES
Issuance of notes receivables			(437,480	)			(1,364,579	)
Payments received on notes receivables			618,016				98,683
Proceeds from borrowings from related party			2,375,820				7,722,636
Payments of borrowings from related party			(6,050,762	)			(950,481	)
Net proceeds from vehicle Floor Plan payable - non-trade			16,765,713				32,147,050
Proceeds from revolving line of credit			65,000,000				20,446,288
Payments of revolving line of credit			(47,000,000	)			(26,446,288	)
Payments of borrowings from bank			(2,437,004	)			(2,431,002	)
Payments of finance lease liabilities			(566,024	)			(442,790	)
Contributions from owners			15,052,445				2,640,541
Distributions to owners			(39,569,810	)			(4,658,525	)
Net cash (used in) provided by financing activities			3,750,914				26,761,533
DECREASE IN CASH AND CASH EQUIVALENTS			(1,725,331	)			(675,885	)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR			6,706,049				7,381,934
CASH AND CASH EQUIVALENTS AT END OF YEAR		$	4,980,718			$	6,706,049

 

See accompanying Notes to Combined Financial Statements.

 

 

RIDENOW GROUP AND AFFILIATES

COMBINED STATEMENTS OF CASH FLOWS

YEARS ENDED DECEMBER 31, 2019 AND 2018

 

		2019				2018
Supplemental Disclosure of Cash Flow Information
Cash paid for Interest		$	10,102,590			$	8,456,398
Non-cash activities
Non-cash issuance of noncontrolling interest		$	125,000			$	1,304,859
Non-cash purchase of noncontrolling interest and release of related party note receivable		$	634,552			$
None-cash equity contributions		$	613,964			$

 

See accompanying Notes to Combined Financial Statements.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

NOTE 1

SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Nature of Business

 

RideNow Group and Affiliates, a non-legal entity, (“RideNow”) is a collection of franchised dealerships operating in the power-sports industry. The Group is engaged in the sale of new and used motorcycles, all-terrain vehicles, personal watercraft, other power-sports vehicles, and related products and services, including repair and maintenance services, parts and accessories, riding gear, and apparel. As of December 31, 2019, RideNow owned and operated more than 45 retail dealerships in the United States, predominately in the Sunbelt region. The core brands sold by RideNow are Harley-Davidson, Honda, Yamaha, Kawasaki, Suzuki, Bombardier, Polaris, BMW, Ducati and Triumph, which are sold through dealer agreements.

 

Basis of Presentation

 

The Combined Financial Statements include the accounts of the following affiliated companies: CMG Powersports Inc., America’s Powersports, Inc., Woods Fun Center, LLC, San Diego House of Motorcycles, LLC, APS of Oklahoma, LLC, APS of Georgetown, LLC, APS of Ohio, LLC, APS of Texas, LLC, C&W Motors, Inc., BJ Motorsports, LLC, Coyote Motorsports - Allen, LTD, Coyote Motorsports - Garland, LTD, East Valley Motorcycles, LLC, Glendale Motorcycles, LLC, JJB Properties, LLC, Metro Motorcycle, Inc., RideNow Carolina, LLC, RideNow, LLC, Ride USA, LLC, Top Cat Enterprises, LLC, Tucson Motorcycle, Inc., Tucson Motorsports, Inc., YSA Motorsports, LLC, RN Tri-Cities, LLC, ECHD Motorcycles, LLC, IOT Motorcycles, LLC, RideNow 6 Garland, LLC, RideNow Gainesville, LLC, RNKC, LLC, RNMC Daytona, LLC, TC Motorcycles, LLC, Ride Now 5 Allen, LLC, RHND Ocala, LLC and Bayou Motorcycles, LLC.

 

These combined financial statements were prepared on a combined basis using the accrual method of accounting. All transactions and accounts between and among the combined entities have been eliminated.

 

Use of Estimates

 

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. In preparing these financial statements, management has made its best estimates and judgments of certain amounts included in the financial statements. RideNow bases its estimates and judgments on historical experience and other assumptions that management believes are reasonable. However, application of these accounting policies involves the exercise of judgment and use of assumptions as to future uncertainties and, as a result, actual results could differ materially from these estimates. RideNow periodically evaluates estimates and assumptions used in the preparation of the financial statements and make changes on a prospective basis when adjustments are necessary. The critical accounting estimates made in the accompanying Combined Financial Statements include certain assumptions related to goodwill and other intangible assets. Other significant accounting estimates include certain assumptions related to long-lived assets, assets held for sale, accruals for chargebacks against revenue recognized from the sale of finance and insurance products, certain legal proceedings, and estimated tax liabilities. Actual results could differ from those estimates.

 

Cash and Cash Equivalents

 

RideNow considers all highly liquid investments with a maturity of three months or less as of the date of purchase to be cash equivalents unless the investments are legally or contractually restricted for more than three months. Under RideNow’s cash management system, outstanding checks that are in excess of the cash balances at certain banks are included in Accounts Payable in the Combined Balance Sheets and changes in these amounts are reflected in operating cash flows in the accompanying Combined Statements of Cash Flows.

 

Inventories

 

Inventories, consisting of new units, are stated at the lower of cost or net realizable value on a specific identification basis. Parts and accessories inventories are stated at the weighted average cost. Used units and other inventories are stated at the lower of cost or wholesale net realizable values on a specific identification basis, as determined by management.

 

Credit Risk

 

Financial instruments which potentially subject RideNow to concentrations of credit risk consist principally of cash in financial institutions that, at times, may exceed FDIC insurance limits. At various times during the year, the cash in bank balances exceed the federally insured limits. Management believes there are no unusual risks associated with current depository institutions.

 

Credit risk with respect to accounts receivable is limited due to the large number of customers comprising RideNow’s customer base. RideNow performs ongoing credit evaluations of its customer’s financial condition and generally requires no collateral from its customers.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

 

 

Contracts in Transit

 

Contracts in transit are proceeds to be received on sales contracts from financing institutions.

 

Accounts Receivable

 

Accounts receivable are uncollateralized obligations for major units, parts, service, and warranty work. Accounts receivable are stated at the invoice amount. Payments of accounts receivable are applied to the specific invoices identified on the customer’s remittance advice or, if unspecified, to the earliest unpaid invoice.

 

Factory receivables which are included in accounts receivable represent amounts due primarily from manufacturer holdbacks, rebates, co-op advertising, warranty, and supplier returns.

 

RideNow provides an allowance for doubtful accounts equal to estimated uncollectible amounts. RideNow’s estimate is based on historical collection experience and a review of the current status of accounts receivable. It is reasonably possible that RideNow’s estimate of the allowance for doubtful accounts will change. Bad debt expense is included as a component of general and administrative expenses in the Combined Statements of Income.

 

Property and Equipment

 

Property and equipment are recorded at cost and depreciated over the lesser of their estimated useful lives or lease term, ranging from 3 to 20 years, using the straight-line method. Upon sale or retirement, the cost and related accumulated depreciation are eliminated from the respective accounts, and the resulting gain or loss is included in the results of operations. Repairs and maintenance charges that do not increase the useful lives of the assets are charged to operations as incurred.

 

Goodwill and Other Intangible Assets, net

 

RideNow acquisitions have resulted in the recording of goodwill and other intangible assets. Goodwill is an asset representing operational synergies, franchise rights and future economic benefits arising from other assets acquired in a business combination that are not individually identified and separately recognized. Other intangible assets represent non-compete agreements entered into with sellers from acquired businesses.

 

RideNow does not amortize goodwill. Goodwill is tested for impairment annually or more frequently when events or changes in circumstances indicate that impairment may have occurred. RideNow elected to perform a quantitative goodwill impairment test for its reporting units as of December 31, 2019 and 2018, and no goodwill impairment charges resulted from the testing.

 

Other intangible assets identified include non-compete agreements which are intangible assets with definite lives and are carried at the acquired fair values less accumulated amortization. The non-compete agreements are amortized over the estimate useful lives.

 

Impairment of Long-Lived Assets

 

RideNow reviews long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to undiscounted future cash flows expected to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying value of the assets exceeds the fair value of the assets. Assets to be disposed of are reported at the lower of the carrying amount, or the fair value less costs to sell.

 

Revenue Recognition

 

Revenues consist of the sales of new and used recreational vehicles, commissions from related finance and insurance products, sales of parts and services, and sale of other products. See Note 3 for a summary of the significant accounting policies related to revenue recognition.

 

Advertising

 

Advertising costs are expensed during the year in which they are incurred. Advertising expense for the years ended December 31, 2019 and 2018 was approximately $7,198,000 and $5,331,000, respectively.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

Income Taxes

 

RideNow and its affiliates’ taxable income or loss is included in the tax returns of its shareholders. Therefore, no provision for income taxes is recorded in these Combined Financial Statements. RideNow has evaluated its tax positions and determined it has no uncertain tax positions as of December 31, 2019.

 

Sales and Excise Tax

 

RideNow collects certain taxes from customers and remits to governmental authorities. RideNow’s accounting policy is to exclude the taxes collected and remitted to the governmental authorities from revenues and costs of sales.

 

Government Regulations

 

All of RideNow’s facilities are subject to federal, state, and local regulations relating to the discharge of materials into the environment. Compliance with these provisions has not had, nor does it expect such compliance to have, any material effect on the capital expenditures, net income, financial condition, or competitive position of RideNow. Management believes that its current practices and procedures for the control and disposition of such wastes comply with applicable federal and state requirements.

 

Recently Adopted Accounting Pronouncements

 

From time to time, new accounting pronouncements are issued by the Financial Accounting Standards Board (“FASB”) under its Accounting Standards Codification (“ASC”) or other standard setting bodies.

 

Revenue from Contracts with Customers

 

RideNow adopted ASU 2014-09 Revenue from Contracts with Customers and all subsequent amendments to the ASU, collectively referred to as Accounting Standards Codification (ASC) Topic 606, which (i) creates a single framework for recognizing revenue from contracts with customers that fall within its scope. RideNow’s goods and services that fall within the scope of Topic 606 are recognized as revenue when promised goods or services are transferred to customers in amounts that reflect the consideration to which RideNow expects to be entitled in exchange for those goods or services.

 

RideNow adopted the accounting standard effective January 1, 2018, using the modified retrospective approach applied only to contracts not completed as of the date of adoption, with no restatement of comparative periods.

 

Accounting for Leases

 

In February 2016, the Financial Accounting Standards Board (“FASB”) issued an accounting standard update (ASC Topic 842) that amends the accounting guidance on leases. The new standard establishes a right-of-use (ROU) model that requires a lessee to record an ROU asset and a lease liability on the balance sheet for all leases with terms longer than 12 months. Leases are classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. The FASB also subsequently issued amendments to the standard, including providing an additional and optional transition method to adopt the new standard, described below, as well as certain practical expedients related to land easements and lessor accounting.

 

The accounting standard update originally required the use of a modified retrospective approach reflecting the application of the standard to the leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements with the option to elect certain practical expedients. A subsequent amendment to the standard provides an additional and optional transition method that allows entities to initially apply the new leases standard at the adoption date and recognize a cumulative effect adjustment to the opening balance of retained earnings in the period of adoption. RideNow adopted this accounting standard effective January 1, 2018, using the optional transition method with no restatement of comparative periods. Therefore, the comparative information has not been adjusted and continues to be reported under ASC Topic 840.

 

RideNow elected certain practical expedients available under the transition guidance within the new standard, which among other things, allowed it to carry forward the historical lease classification of RideNow’s existing leases. RideNow did not elect the use-of-hindsight or the practical expedient pertaining to land easements; the latter not being applicable to us. Consequently, on adoption, RideNow recognized additional operating liabilities of $78,565,477 and ROU assets of $70,650,372 at December 31, 2019 and additional operating liabilities of $70,904,306 and ROU assets of $63,246,809 at December 31, 2018, respectively. The new standard also provides practical expedients for an entity’s ongoing accounting. RideNow elected the short-term lease recognition exemption for all leases that qualify. As a result, for those leases that qualify, RideNow will not recognize ROU assets or lease liabilities, and RideNow did not recognize ROU asset or lease liabilities for existing short-term leases of those assets in transition. RideNow also elected the practical expedient to not separate lease and non-lease components of leases for the majority of RideNow classes of underlying assets.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

 

 

NOTE 2

BUSINESS ACQUISITION

 

During 2019, RideNow acquired the assets and assumed certain liabilities of Crystal Motorcycle Ocala LLC, in order to further expand operations in the Florida market. During 2018, RideNow acquired the assets and assumed certain liabilities of Cycle Mart LP, Deen Implement Co, and Moving Forward Arizona LLC in order to further expand operations in Texas and Arizona markets.

 

All acquisitions were accounted for as business combinations under the acquisition method of accounting. The results of operations of the acquired stores are included in the Combined Financial Statements from the date of acquisition.

 

The following tables summarize the consideration paid in cash for the acquisitions and the amount of identified assets acquired and liabilities assumed as of the acquisition date:

 

		2019				2018
Cash paid, net of cash acquired		$	4,638,218			$	5,366,161

 

Assets acquired and liabilities assumed for the year ended December 31,

 

		2019				2018
Cash		$	-			$	1,500
Inventories			2,627,975				4,916,161
Property and equipment			266,539				350,000
Other assets			102,700				10,000
Floor plan notes payables			(2,245,471	)			(2,773,985	)
Other liabilities			(13,525	)			(253,515	)
			738,218				2,250,161
Goodwill			3,900,000				3,116,000
		$	4,638,218			$	5,366,161

 

For the years ended 2019 and 2018, the total cash paid at closing amounted to $4,638,218 and $5,366,161, net assets acquired amounted to $738,218 and $2,250,161 and goodwill recognized amounted to $3,900,000 and $3,116,000 respectively.

 

 

NOTE 3

REVENUE FROM CONTRACTS WITH CUSTOMERS

 

New and Used Recreational Vehicles

 

RideNow sells new and used recreational vehicles. The transaction price for a recreational vehicle sale is determined with the customer at the time of sale. Customers often trade in their own recreational vehicle to apply toward the purchase of a retail new or used recreational vehicle. The “trade-in” recreational vehicle is a type of noncash consideration measured at fair value, based on external and internal market data for a specific recreational vehicle, and applied as payment of the contract price for the purchased recreational vehicle.

 

When RideNow sells a new or used recreational vehicle, transfer of control typically occurs at a point in time upon delivery of the vehicle to the customer, which is generally at the time of sale, as the customer is able to direct the use of, and obtain substantially all benefits from the recreational vehicle at such time. RideNow does not directly finance its customer’s purchases or provide leasing. In many cases, RideNow arranges third-party financing for the retail sale or lease of recreational vehicles to customers in exchange for a fee paid to RideNow by a third-party financial institution.

 

RideNow receives payment directly from the customer at the time of sale or from a third-party financial institution (referred to as contracts-in-transit) within a short period of time following the sale. RideNow establishes provisions, which are not significant, for estimated returns and warranties on the basis of both historical information and current trends.

 

Parts and Service

 

RideNow sells parts and vehicle services related to customer-paid repairs and maintenance, repairs and maintenance under manufacturer warranties and extended service contracts, and collision-related repairs. RideNow also sells parts through wholesale and retail counter channels.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

   

Each repair and maintenance service is a single performance obligation that includes both the parts and labor associated with the vehicle service. Payment for each vehicle service work is typically due upon completion of the service, which is generally completed within a short period from contract inception. The transaction price for repair and maintenance services is based on the parts used, the number of labor hours applied, and standardized hourly labor rates. The performance obligation for repair and maintenance service are satisfied over time and create an asset with no alternative use and with an enforceable right to payment for performance completed to date. Revenue is recognized over time based on a direct measurement of labor hours, parts and accessories that are allocated to open service and repair orders at the end of each reporting period.

 

As a practical expedient, the time value of money is not considered since repair and maintenance service contracts have a duration of one year or less. The transaction price for wholesale and retail counter parts sales is determined at the time of sale based on the quantity and price of each product purchased. Payment is typically due at time of sale, or within a short period following the sale. RideNow establishes provisions, which are not significant, for estimated parts returns based on historical information and current trends. Delivery method of wholesale and retail counter parts vary.

 

RideNow generally considers control of wholesale and retail counter parts to transfer when the products are shipped, which typically occurs the same day as or within a few days of sale. RideNow also offers customer loyalty points for parts and services for select franchises. RideNow satisfies its performance obligations and recognizes revenue when the loyalty points are redeemed. Amounts deferred related to the customer loyalty programs are insignificant.

 

Finance and Insurance

 

RideNow sells and receives commissions on the following types of finance and insurance products: extended service contracts, maintenance programs, guaranteed auto protection, tire and wheel protection, and theft protection products, among others. RideNow offers products that are sold and administered by independent third parties, including the vehicle manufacturers’ captive finance subsidiaries.

 

Pursuant to the arrangements with these third-party providers, RideNow sells the products on a commission basis. For the majority of finance and insurance product sales, RideNow’s performance obligation is to arrange for the provision of goods and services by another party. RideNow’s performance obligation is satisfied when this arrangement is made, which is when the finance and insurance product is delivered to the end customer, generally at the time of the vehicle sale. As agent, RideNow recognizes revenue in the amount of any fee or commission to which it expects to be entitled, which is the net amount of consideration that it retains after paying the third-party provider the consideration received in exchange for the goods or services to be fulfilled by that party.

 

RideNow’s customers are concentrated in the Sunbelt region. There are no significant judgements or estimates required in determining the satisfaction of the performance obligations or the transaction price allocated to the performance obligations. As revenues are recognized at a point-in-time, costs to obtain the customer (i.e. commissions) do not require capitalization.

 

Disaggregation of Revenue

 

The significant majority of RideNow’s revenue is from contracts with customers. In the following tables, revenue is disaggregated by major lines of goods and services and timing of transfer of goods and services. We have determined that these categories depict how the nature, amount, timing, and uncertainty of our revenue and cash flows are affected by economic factors.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

  

Revenues from contracts with customers consists of the following:

 

		For the Year Ended December 31,
		2019				2018
Revenue:
New vehicle		$	397,717,879			$	389,346,760
Used vehicle			132,805,032				113,616,255
New and used vehicle			530,522,911				502,963,015
Service, parts and others			151,849,099				146,211,431
Finance and insurance, net			53,868,710				50,180,259
Total revenue		$	736,240,720			$	699,354,705
Timing of revenue recognition:
Goods and services transferred at a point in time		$	641,370,068			$	616,238,008
Goods and services transferred over time (1)			94,870,652				83,116,697
Total revenue		$	736,240,720			$	699,354,705

 

(1)

Represents revenue recognized during the period for vehicle repair and maintenance services.

 

Adoption of ASU 2014-09 Revenue from Contracts with Customers and all subsequent amendments to the ASU, collectively referred to as Accounting Standards Codification (ASC) Topic 606 resulted in a cumulative adjustment to retained earnings of approximately $737,000.

 

NOTE 4

ACCOUNTS RECEIVABLE

 

Accounts receivable consisted of the following as of December 31:

 

		2019				2018
Trade receivables		$	2,830,500			$	2,859,304
Factory receivables			6,827,863				6,106,437
Other receivables			803,832				1,205,350
Total accounts receivables			10,462,195				10,171,091
Less: Allowance for doubtful accounts			(610,970	)			(752,870	)
Accounts receivables, net		$	9,851,225			$	9,418,221

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

NOTE 5

INVENTORIES AND VEHICLE FLOOR PLAN PAYABLES

 

Inventories consisted of the following as of December 31 are as follows:

 

		2019				2018
New vehicles		$	166,901,387			$	145,904,475
Used vehicles			26,634,590				29,678,143
Parts, accessories and other			23,454,618				21,590,261
Total cost		$	216,990,595			$	197,172,879

 

The components of vehicle floorplan payables at December 31 are as follows:

 

		2019				2018
Vehicle Floor Plan payable - trade		$	39,087,146			$	43,568,452
Vehicle Floor Plan payable – non-trade			123,888,784				106,290,651
Vehicle Floor Plan payable		$	162,975,930			$	149,859,103

 

Vehicle floorplan payable-trade reflects amounts borrowed to finance the purchase of specific new and, to a lesser extent, used vehicle inventories with the corresponding manufacturers’ captive finance subsidiaries (“trade lenders”). Vehicle floorplan payable-non-trade represents amounts borrowed to finance the purchase of specific new and, to a lesser extent, used vehicle inventories with non-trade lenders, as well as amounts borrowed under RideNow’s secured used vehicle floorplan facilities. Changes in vehicle floorplan payable-trade are reported as operating cash flows and changes in vehicle floorplan payable-non-trade are reported as financing cash flows in the accompanying Combined Statements of Cash Flows.

 

RideNow’s inventory costs are generally reduced by manufacturer holdbacks, incentives, floorplan assistance, and non-reimbursement-based manufacturer advertising rebates, while the related vehicle floorplan payables are reflective of the gross cost of the vehicle. The vehicle floorplan payables, as shown in the above table, will generally also be higher than the inventory cost due to the timing of the sale of a vehicle and payment of the related liability. Vehicle floorplan facilities are due on demand, but in the case of new vehicle inventories, are generally paid within several business days after the related vehicles are sold. Vehicle floorplan facilities are primarily collateralized by vehicle inventories and related receivables.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

NOTE 6

PROPERTY AND EQUIPMENT, NET

 

The following table summarizes property and equipment, net of accumulated depreciation and amortization as of December 31:

 

		2019				2018
Equipment		$	5,084,165			$	4,587,416
Furniture and fixtures			18,422,739				16,958,571
Buildings			13,146,907				13,146,907
Vehicles			4,190,082				2,615,332
Leasehold improvements			9,907,006				9,683,537
Construction in progress			102,831				9,966
Total property and equipment			50,853,730				47,001,729
Less: Accumulated depreciation			(27,754,414	)			(22,903,831	)
Property and equipment, net		$	23,099,316			$	24,097,898

 

Depreciation and amortization expense for the years ended December 31, 2019 and 2018 was approximately $3,753,000 and $3,869,000, respectively.

 

NOTE 7

GOODWILL AND INTANGIBLE ASSETS, NET

 

RideNow’s acquisitions have resulted in the recording of goodwill and other intangible assets. Goodwill is an asset representing operational synergies, franchise rights and future economic benefits arising from other assets acquired in a business combination that are not individually identified and separately recognized. Other intangible assets represent non-compete agreements entered into with sellers from the acquired businesses and are not significant to the combined financial statements.

 

The changes in goodwill for the years ended December 31, 2019 and 2018 are as follows:

 

		Goodwill
Balance at December 31, 2017		$	47,972,384
Acquisitions			3,116,000
Impairments			-
Balance at December 31, 2018			51,088,384
Acquisitions			3,900,000
Impairments			-
Balance at December 31, 2019		$	54,988,384

 

NOTE 8

LINE OF CREDIT

 

RideNow has a $19,000,000 revolving line of credit established at a bank. RideNow participates in the line of credit with certain affiliates. Interest is payable monthly at the lesser of the prime rate (4.75% and 5.50% at December 31, 2019 and 2018, respectively) or LIBOR plus 2.75% (4.98% and 5.27% at December 31, 2019 and 2018, respectively). The line of credit is secured by substantially all of the assets of the participating affiliates. The line of credit has been amended and renewed multiple times under similar terms since its inception and has a maturity date of January 15, 2021. The outstanding balance on the line of credit was $18,000,000 and $-0- at December 31, 2019 and 2018, respectively.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

  

NOTE 9

LONG-TERM NOTES PAYABLE

 

Notes payable – related parties

 

The following consists of the notes payable to related parties as of December 31:

 

		2019				2018
Various unsecured notes payable to Steele IV, LLLP, a related party through common ownership; monthly principal payments range from $10,000 to $20,000; interest accruing at rates ranging from LIBOR + 1.3% to LIBOR + 2.0%		$	5,744,265			$	4,656,196
Various unsecured notes payable to RideNow Management, LLLP, a related party through common ownership; monthly principal payments ranging from $10,000 to $25,000; interest accruing at rates ranging from LIBOR + 0.6% to LIBOR + 1.3%.			3,277,639				8,542,709
Various unsecured notes payable to Denex, LLLP, a related party through common ownership; monthly principal payments ranging from $10,000 to $15,000 interest accruing at rates ranging from LIBOR + 0.5% to LIBOR + 1.3%.			5,047,629				4,045,571
Unsecured note payable to WRC 2009, LLC, a related party through common ownership; no formal repayment terms; repaid during 2019.			-				500,000
Total			14,069,533				17,744,476
Less: Current maturities			(6,569,584	)			(1,816,681	)
Long-term maturities due to related party		$	7,499,949			$	15,927,795

 

The future maturities of long-term note payables to related parties as of December 31, 2019:

 

2020		$	6,569,584
2021			5,130,281
2022			1,030,166
2023			750,000
2024			500,139
Thereafter			89,363
Total maturities of long-term notes payable – related parties		$	14,069,533

 

Note payable – bank

 

The following consist of a note payable to a bank as of December 31:

 

		2019				2018
Northern Trust Bank term loan agreement that requires monthly principal payments of approximately $190,500 and accrues interest at the one-month LIBOR plus 2.0%. This loan is guaranteed by the owners of CMG Powersports, Inc. and matures July 1, 2021.		$	8,000,000			$	10,285,714
Less: Current maturities			(2,285,714	)			(2,285,714	)
Long-term maturities of note payables - bank		$	5,714,286			$	8,000,000

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

The future maturities of long-term note payables to a bank as of December 31, 2019:

 

2020			2,285,714
2021			5,714,286
Total of long-term notes payable - other		$	8,000,000

 

Note payable – other

 

The following consist of a note payable to others as of December 31:

 

		2019				2018
Unsecured note payable to P&D Motorcycles in the original amount of $1,724,000 with an interest rate of 4% and note payable matures on July 1, 2022			1,351,897				1,503,187
Less: Current maturities			(209,456	)			(151,290	)
Long-term maturities of note payables - bank		$	1,142,441			$	1,351,897

 

The future maturities of long-term note payables to other as of December 31, 2019:

 

2020			209,456
2021			209,456
2022			932,985
Total maturities of long-term notes payable – other		$	1,351,897

 

NOTE 10

LEASES

 

General description

 

The significant majority of leases that RideNow enters into are for real estate. RideNow leases numerous facilities relating to RideNow’s operations, including primarily for vehicle showrooms, display lots, service facilities, collision repair centers, supply facilities, vehicle storage lots, parking lots, offices, and RideNow’s corporate headquarters. Leases for real property have terms ranging from one to twenty-five years. RideNow also leases various types of equipment, including security cameras, diagnostic equipment, copiers, key-cutting machines, and postage machines, among others. Equipment leases generally have terms ranging from one to five years.

 

RideNow’s lease agreements do not contain any material residual value guarantees or material restrictive covenants. RideNow does not have any significant leases that have not yet commenced but that create significant rights and obligations for us. RideNow has elected the practical expedient under ASC Topic 842 to not separate lease and non-lease components for the following classes of underlying assets: real estate, office equipment, service loaner vehicles, and marketing-related assets (e.g., billboards).

 

RideNow’s real estate and equipment leases often require that RideNow pay maintenance in addition to rent. Additionally, RideNow’s real estate leases generally require payment of real estate taxes and insurance. Maintenance, real estate taxes, and insurance payments are generally variable and based on actual costs incurred by the lessor. Therefore, these amounts are not included in the consideration of the contract when determining the right-of-use (“ROU”) asset and lease liability, but are reflected as variable lease expenses for those classes of underlying assets for which RideNow has elected the practical expedient to not separate lease and non-lease components.

 

Leases with an initial term of 12 months or less are not recorded on the balance sheet; RideNow recognizes lease expense for these leases on a straight-line basis over the lease term. RideNow rents or subleases certain real estate to third parties, which are primarily operating leases.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

Variable lease payments

 

A majority of RideNow’s lease agreements include fixed rental payments. Certain of RideNow’s lease agreements include fixed rental payments that are adjusted periodically for changes in the Consumer Price Index (“CPI”). Payments based on a change in an index or a rate are not considered in the determination of lease payments for purposes of measuring the related lease liability. While lease liabilities are not remeasured as a result of changes to the CPI, changes to the CPI are treated as variable lease payments and recognized in the period in which the obligation for those payments are incurred.

 

Options to extend or terminate leases

 

Most of RideNow’s real estate leases include one or more options to renew, with renewal terms that can extend the lease term from one to five years or more. The exercise of lease renewal options is at RideNow’s sole discretion. If it is reasonably certain that RideNow will exercise such options, the periods covered by such options are included in the lease term and are recognized as part of RideNow’s ROU assets and lease liabilities. Certain leases also include options to purchase the leased property. The depreciable life of assets and leasehold improvements are limited by the expected lease term, unless there is a transfer of title or purchase option reasonably certain of exercise.

 

Discount rate

 

For the incremental borrowing rate, RideNow generally uses a portfolio approach to determine the discount rate for leases with similar characteristics. RideNow determines discount rates based on current market prices of instruments similar to RideNow’s unsecured borrowings with maturities that align with the relevant lease term, and such rates are then adjusted for RideNow’s credit spread and the effects of full collateralization.

 

Balance Sheet Presentation

 

The following consist of lease related assets and liabilities as of December 31:

 

Leases		Classification		2019				2018
Assets:
Operating		Operating lease assets		$	59,845,283			$	51,270,811
Finance		Property and Equipment, net			10,805,089				11,975,998
Total right-of-use assets				$	70,650,372			$	63,246,809
Liabilities
Current
Operating		Current portion of operating lease liabilities		$	14,693,192			$	13,981,772
Finance		Current portion of finance lease liabilities			3,163,199				3,109,558
Non-Current
Operating		Long-term portion of operating lease liabilities			47,244,420				39,728,645
Financing		Long-term portion of finance lease liabilities			13,464,666				14,084,331
Total lease liabilities				$	78,565,477			$	70,904,306

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

Lease Term and Discount Rate

 

The following consists of the lease terms and discount rates as of December 31:

 

		2019				2018
Weighted Average Lease Term - Operating Leases			5.9 years				6.2 years
Weighted Average Lease Term - Finance Leases			9.6 years				10.6 years
Weighted Average Discount Rate - Operating Leases			3.0	%			3.0	%
Weighted Average Discount Rate - Finance Leases			18.1	%			18.0	%

 

Lease Costs

 

The following table provides certain information related to the lease costs for finance and operating leases for the years ended December 31:

 

Lease Cost		Classification		2019				2018
Operating lease costs		Selling, general and administrative expenses		$	14,995,468			$	14,214,823
Finance lease costs:
Amortization of ROU assets		Depreciation and Amortization			1,170,909				1,170,909
Interest on lease liabilities		Floor plan interest and other interest expense			2,810,138				2,884,300
* Variable lease costs		Selling, general and administrative expenses			1,067,513				992,325
				$	20,044,028			$	19,262,357

 

*

Variable Lease Cost includes the following:

-

Short term lease costs, which are immaterial.

-

Sales tax, CAM charges, and CPI adjustments.

 

Supplemental Cash Flow Information

 

The following table presents supplemental cash flow information for leases for the year ended December 31:

 

		2019				2018
Cash paid for amounts included in the measurements of lease liabilities:
Operating cash flows from operating leases		$	15,342,746			$	14,263,316
Operating cash flows from finance leases		$	2,810,138			$	2,884,300
Financing cash flows from finance leases		$	566,024			$	442,000
Right-of-use assets obtained in exchange for new:
Operating lease liabilities		$	22,482,942			$	8,693,628
Finance lease liabilities		$	-				$
Non-cash reduction in right-of-use assets and lease liabilities from modification to operating leases:		$	-			$	1,389,244

 

RideNow leases facilities under operating leases expiring through January 2029. The leases require varying monthly payments ranging from $3,900 to $79,000.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

Future minimum payments under these commitments as of December 31, 2019 are as follows:

 

		Operating Leases				Finance Leases
Year Ending December 31,
2020		$	14,895,237			$	3,433,494
2021			12,318,028				3,478,480
2022			10,393,952				3,515,681
2023			8,995,510				3,568,272
2024			7,520,534				3,615,480
Thereafter			13,737,397				16,598,014
Total lease payments			67,860,658				34,209,421
Less: Interest			(5,923,046	)			(17,581,556	)
Present value of lease liabilities		$	61,937,612			$	16,627,865
Current portion of lease liabilities		$	15,033,457			$	3,163,199
Long-term portion of lease liabilities			46,904,155				13,464,666
		$	61,937,612			$	16,627,865

 

Lease expense charged to operations was approximately $14,995,468 and $14,214,823 for the years ended December 31, 2019 and 2018, respectively.

 

Future minimum lease payments under these commitments, as presented above, scheduled in connection with a related party are as follows:

 

		2019
Maturity of Related Party Lease Liabilities
2020		$	11,867,990
2021			10,287,195
2022			9,091,299
2023			8,368,594
2024			7,807,116
Thereafter			24,568,658
Total lease payments			71,990,852
Less: Interest			(20,026,506	)
Present value of lease liabilities		$	51,964,346

 

		2018
Maturity of Related Party Lease Liabilities
2019		$	11,073,441
2020			8,971,832
2021			7,348,560
2022			6,004,200
2023			5,150,024
Thereafter			27,109,038
Total lease payments			65,657,095
Less: Interest			(21,772,318	)
Present value of lease liabilities		$	43,884,777

 

Lease expense charged to operations in connection with a related party was approximately $8,715,266 and $8,598,685 for the years ended December 31, 2019 and 2018, respectively.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

NOTE 11

RELATED PARTY TRANSACTIONS

 

Cash Sweep Account Payables/Receivables

 

RideNow is a participant in a Cash Sweep Account arrangement with a bank and its affiliates. The Cash Sweep Account combines the cash balances of all the participating affiliates and invests excess cash on a daily basis. Interest is paid to each participant based on the average cash balance in the Cash Sweep account over the course of the year. Any participant that develops an overdraft cash balance is charged interest. For the years ended December 31, 2019 and 2018, the Cash Sweep Account was earning interest at 3.11% and 2.89%, respectively, and for overdraft balances, the interest charged was 3.50% and 3.75%, respectively.

 

		2019				2018
Cash Sweep Accounts:
Related party receivable		$	28,555,340			$	21,297,800
Related party payable			(14,087,220	)			(18,728,170	)
Net Cash Sweep Account Balance		$	14,468,120			$	2,569,630

 

Shared Services

 

RideNow receives administrative support from RideNow Management, LLLP and Coulter Management Group, LLLP, which are related parties due to common ownership. Total administrative services received from these entities and charged to operations were $450,454 and $221,648, for the years ending December 31, 2019 and 2018, respectively.

 

NOTE 12

SUPPLEMENTAL CASH FLOW INFORMATION

 

The following table includes supplemental cash flow information, including noncash investing and financing activity for the years ended December 31,

 

		2019				2018
Cash paid for interest		$	10,102,590			$	8,456,398
Non-cash activities:
Non-cash issuance of noncontrolling interest		$	125,000			$	1,304,859
Non-cash purchase of noncontrolling interest and release of related party note receivable		$	634,552				-
Non-cash equity contributions		$	613,964				-

 

NOTE 13

RETIREMENT PLAN

 

RideNow maintains a 401(k) plan (the Plan) covering substantially all employees who are over the age of 21 and meet specified service requirements. Participants may voluntarily contribute to the Plan, not to exceed the maximum limits imposed by the Internal Revenue Service regulations. Contributions to the Plan are made by the participants to their individual accounts through payroll withholding. Additionally, RideNow provides a matching contribution of 25% up to the first 6% of participants’ annual earnings with a maximum of $2,000 annually. RideNow’s contribution to the Plan was approximately $613,270 and $1,093,730 for the years ended December 31, 2019 and 2018, respectively.

 

NOTE 14

CONTINGENCIES

 

From time to time, RideNow is contingently liable in respect to lawsuits and claims incidental to the ordinary course of its operations. Management has determined that the outcome of any such matters will not have a material effect on the Combined Financial Statements. No provision has been made in the accompanying Combined Financial Statements for losses, if any, that might result from the ultimate outcome of such matters.

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

  

NOTE 15

BUSINESS AND CREDIT CONCENTRATIONS

 

Financial instruments that potentially subject us to concentrations of credit risk consist principally of cash on deposit with financial institutions. At times, amounts invested with financial institutions exceed Federal Deposit Insurance Corporation insurance limits. Concentrations of credit risk with respect to receivables are limited primarily to receivables from automobile manufacturers or distributors which RideNow holds franchises, totaling approximately $6,828,000 and $6,106,000 at December 31, 2019 and 2018, respectively.

 

RideNow is subject to a concentration of risk in the event of financial distress or other adverse events related to any of the manufacturers whose franchised dealerships are included in RideNow’s brand portfolio. RideNow purchases new vehicle inventory from various powersports manufacturers at the prevailing prices available to all franchised dealerships. In addition, RideNow finances a substantial portion of its new vehicle inventory with manufacturer-affiliated finance companies. RideNow’s results of operations could be adversely affected by the manufacturers’ inability to supply RideNow dealerships with an adequate supply of new vehicle inventory and related floor plan financing. RideNow also has concentrations of risk related to the geographic markets in which RideNow dealerships operate. Changes in overall economic, retail powersports or regulatory environments in one or more of these markets could adversely impact the results of RideNow’s operations.

 

Concentrations of credit risk with respect to non-manufacturer trade receivables are limited due to the wide variety of customers and markets in which RideNow’s products are sold as well as their dispersion across many different geographic areas in the United States. Consequently, at December 31, 2019, RideNow does not consider itself to have any significant non-manufacturer concentrations of credit risk.

 

NOTE 16

FINANCIAL INSTRUMENTS AND FAIR VALUE MEASUREMENTS

 

The fair value of a financial instrument represents the amount at which the instrument could be exchanged in a current transaction between willing parties, other than in a forced sale or liquidation. Fair value estimates are made at a specific point in time, based on relevant market information about the financial instrument. These estimates are subjective in nature and involve uncertainties and matters of judgment, and therefore cannot be determined with precision.

 

Accounting standards define fair value as the price that would be received from selling an asset or paid to transfer a liability in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants at the measurement date. Accounting standards establish a fair value hierarchy which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value and also establishes the following three levels of inputs that may be used to measure fair value:

 

	Level 1	Quoted prices in active markets for identical assets or liabilities
	Level 2	Observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities; quoted market prices in markets that are not active; or model-derived valuations or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities
	Level 3	Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

The following methods and assumptions were used by us in estimating fair value disclosures for financial instruments:

 

●

Cash and cash equivalents, receivables, other current assets, vehicle floorplan payable, accounts payable, other current liabilities, and variable rate debt: The amounts reported in the accompanying Combined Balance Sheets approximate fair value due to their short-term nature or the existence of variable interest rates that approximate prevailing market rates.

 

●

Fixed rate long-term debt: RideNow’s fixed rate long-term debt consists primarily of amounts outstanding under its senior unsecured notes. The amounts reported in the accompanying Combined Balance Sheets approximate fair value due to its senior unsecured notes using quoted prices for the identical liability (Level 1.)

 

Nonfinancial assets such as goodwill, other intangible assets, and long-lived assets held and used are measured at fair value when there is an indicator of impairment and recorded at fair value only when impairment is recognized or for a business combination. The fair values less costs to sell of long-lived assets or disposal groups held for sale are assessed each reporting period they remain classified as held for sale. Subsequent changes in the held for sale long-lived asset’s or disposal group’s fair value less cost to sell (increase or decrease) are reported as an adjustment to its carrying amount, except that the adjusted carrying amount cannot exceed the carrying amount of the long-lived asset or disposal group at the time it was initially classified as held for sale.

 

NOTE 17

SEGMENT INFORMATION

 

As of December 31, 2019 and 2018, RideNow had two operating segments: (1) Harley-Davidson motor sports dealerships and (2) Metric motor sports dealerships (representing all Non-Harley-Davidson motor sports dealerships). RideNow’s Harley-Davidson dealership segment is comprised of retail franchises that sell new and used motorcycles and related accessories, riding gear and apparel, replacement parts, equipment repair and maintenance services, and also arrange for the delivery of finance and insurance products through third party providers. RideNow’s Metric dealerships segment is comprised of retail franchises that sell new and used motorcycles (non-Harley-Davidson) and other motor sports equipment, including all-terrain vehicles, utility terrain vehicles, boats, personal watercraft, snowmobiles and scooters from manufacturers such as Honda, Yamaha, Kawasaki, Suzuki, Bombardier, Polaris, BMW, Ducati and Triumph. Additionally, dealerships in RideNow’s Metric segment sell related products and services, including repair and maintenance services and also arrange for the delivery of finance and insurance products through third party providers.

 

RideNow has determined that the operating segments also represent the reportable segments. The reportable segments identified above are the business activities of RideNow for which discrete financial information is available and for which operating results are regularly reviewed by the chief operating decision maker to assess operating performance and allocate resources. RideNow’s chief operating decision maker is comprised of its two owners, who are also RideNow’s (1) Chairman of the Board and (2) Chief Executive Officer.

 

The following tables provide reportable segment revenues, gross profit, floorplan interest expense, segment income and inventories:

 

		2019
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
Revenue		$	220,621,113			$	515,619,607			$	736,240,720
Gross Profit		$	60,788,862			$	120,760,582			$	181,549,444
Gross profit %			27.6	%			23.4	%			24.7	%
Floor Plan interest expense		$	1,017,392			$	4,511,024			$	5,528,416
Segment income%			0.5	%			0.9	%			0.8	%
Segment income (1)		$	11,623,250			$	23,223,398			$	34,846,648
Segment income %			5.3	%			4.5	%			4.7	%
Inventories		$	53,477,090			$	163,513,505			$	216,990,595

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

 

		2018
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
Revenue		$	223,649,734			$	475,704,971			$	699,354,705
Gross Profit		$	61,595,526			$	110,978,334			$	172,573,860
Gross profit %			27.5	%			23.3	%			24.7	%
Floor Plan interest expense		$	1,068,945			$	3,078,189			$	4,147,134
Segment income%			0.5	%			0.6	%			0.6	%
Segment income (1)		$	14,110,515			$	21,557,144			$	35,667,659
Segment income %			6.3	%			4.5	%			5.1	%
Inventories		$	40,449,979			$	156,722,900			$	197,172,879

 

(1)

Segment income represents income for each reportable segment and is defined as income from operations less floorplan interest expense, which is the measure by which management allocates resources to its segments.

 

The following is a reconciliation of the total of the reportable segments’ segment income to the combined net income:

 

		2019				2018
Reportable segment income		$	34,846,648			$	35,667,659
Corporate operating income/expense			219,553				(38,962	)
Other interest expense			(4,551,687	)			(4,416,800	)
Interest income			986,756				721,953
Management fee expense							(672,256	)
Miscellaneous income			1,215,627				440,687
Combined net income		$	32,716,897			$	31,702,281

 

The following tables provide revenues by products and services:

 

		2019
		Harley Davidson Dealerships				Metric Dealerships				Combined
New vehicles		$	79,738,881			$	317,978,998			$	397,717,879
Used vehicles			68,871,728				63,933,304				132,805,032
Service, parts and other			57,515,708				94,333,391				151,849,099
Finance and insurance income			14,494,796				39,373,914				53,868,710
		$	220,621,113			$	515,619,607			$	736,240,720

 

		2018
		Harley Davidson Dealerships				Metric Dealerships				Combined
New vehicles		$	91,490,058			$	297,856,702			$	389,346,760
Used vehicles			60,363,476				53,252,779				113,616,255
Service, parts and other			57,234,843				88,976,588				146,211,431
Finance and insurance income			14,561,357				35,618,902				50,180,259
		$	223,649,734			$	475,704,971			$	699,354,705

 

 

RIDENOW GROUP AND AFFILIATES

NOTES TO COMBINED FINANCIAL STATEMENTS

DECEMBER 31, 2019 AND 2018

  

NOTE 18

SUBSEQUENT EVENTS

 

Business Combinations

 

On May 4, 2020, RideNow closed on a business acquisition with Daytona Fun Machines, Inc., a Florida dealership, for a cash payment of $1,306,617 pursuant to an asset purchase agreement subject to adjustments for working capital and escrow provisions. Daytona Fun Machines, Inc. sells and services motorcycles, powersports and marine products manufactured by American Honda Motor Company, Yamaha Motor Corporation, Kawasaki Motors Corp. and Bombardier Recreational Products Inc. The acquisition qualified as a business combination and was accounted for using the acquisition method of accounting. As of the settlement date, RideNow recognized assets of $2,923,017, liabilities assumed of $1,854,535 and goodwill of $238,135. As of November 30, 2020, the acquired business had recognized gross revenues of $7,625,884, costs and operating expenses of $6,920,052 and net income of $705,832.

 

On May 5, 2020, RideNow closed on a business acquisition with Volusia Motorsports, Inc., a Florida dealership, for a cash payment of $ 448,225 pursuant to an asset purchase agreement subject to adjustments for working capital and escrow provisions. Volusia Motorsports, Inc. sells and services Polaris, Slingshot, KTM and Star EV motorcycles/scooters, all-terrain vehicles, utility vehicles and golf carts manufactured and distributed by Polaris Industries Inc., KTM North American, Inc and JH Global Services, Inc. The acquisition qualified as a business combination and will be accounted for using the acquisition method of accounting. As of the settlement date, RideNow recognized assets of $1,278,502, liabilities assumed of $944,557 and goodwill of $114,280. As of November 30, 2020, the acquired business had recognized gross revenues of $1,976,911, costs and operating expenses of $1,998,037 and a net loss of $21,126. In September 2020, the Company was merged into Daytona Fun machines, Inc.

 

Coronavirus Pandemic (COVID-19)

 

Subsequent to year-end, the World Health Organization declared the spread of Coronavirus Disease (COVID-19) a worldwide pandemic. The COVID-19 pandemic is having significant effects on global markets, supply chains, businesses, and communities. Specific to RideNow, COVID-19 may impact various parts of its 2020 operations and financial results. Management believes RideNow is taking appropriate actions to mitigate the negative impact. However, the full impact of COVID-19 is unknown and cannot be reasonably estimated at December 31, 2019.

 

Paycheck Protection Program

 

In March 2020, tax legislation was passed in the United States of America, which created the Paycheck Protection Program (PPP). As part of the PPP, RideNow received combined loans of approximately $18,731,000, which can be used to cover certain allowable expenses of RideNow. The PPP contains provisions that allow for the full or partial forgiveness of the loans if certain requirements are met. Loan amounts that are not forgiven accrue interest at 1% per annum and are generally due within two years.

 

 

 

25

Exhibit 99.5

 

RIDENOW GROUP AND AFFILIATES

CONDENSED COMBINED FINANCIAL STATEMENTS

MARCH 31, 2021

 

RideNow Group and Affiliates

 

Table of Contents

 

Condensed Combined Balance Sheets		2
Condensed Combined Statements of Operations		3
Condensed Combined Statements of Owners’ Equity		4
Condensed Combined Statements of Cash Flows		5
Notes to Condensed Combined Financial Statements		6

 

 

RideNow Group and Affiliates

Condensed Combined Balance Sheets

(Unaudited)

 

		As of March 31, 2021				As of December 31, 2020
ASSETS
Current assets
Cash and cash equivalents		$	4,337,169			$	3,905,686
Contracts in transit			17,321,129				10,736,791
Accounts receivable, net			12,512,404				10,023,174
Accounts receivable – related parties			96,134,436				84,535,861
Inventories, net			104,079,912				109,749,521
Prepaid expenses			1,847,740				1,625,109
Total current assets			236,232,790				220,576,142
Right-of-use assets			77,016,962				71,280,471
Property and equipment, net of accumulated depreciation			23,249,651				23,705,230
Goodwill			55,294,222				55,294,222
Note receivable – related party			1,018,863				1,264,425
Other non-current assets			269,625				288,758
Total Assets		$	393,082,113			$	372,409,248
LIABILITIES AND OWNERS’ EQUITY
Current liabilities
Accounts payable and accrued liabilities		$	37,060,586			$	36,806,476
Accounts payable – related parties			30,126,468				27,615,211
Floor plan notes payable			62,514,325				68,533,679
Revolving line of credit			-				-
Current portion of operating lease liabilities			17,952,416				15,755,805
Current portion of financing lease liabilities			3,976,599				4,059,496
Current portion of notes payable – related parties			504,000				504,000
Current portion of note payable – other			7,467,783				8,093,444
Total current liabilities			159,602,177				161,368,111
Long-term liabilities
Notes payable – related parties			6,781,322				6,907,322
Long-term portion of operating lease liabilities			61,003,179				57,473,929
Long-term portion of financing lease liabilities			14,427,675				14,550,947
Note payable- PPP loans			16,923,759				16,923,759
Note payable – other			944,463				985,052
Other long-term liabilities			6,857,364				4,779,112
Total liabilities			266,539,938				262,988,232
Owners’ equity			126,542,174				109,421,016
Total liabilities and owners’ equity		$	393,082,113			$	372,409,248

 

See accompanying Notes to Condensed Combined Financial Statements

 

 

RideNow Group and Affiliates

Condensed Combined Statements of Operations

(Unaudited)

 

		Three Months Ended March 31,
		2021				2020
Revenue
New vehicles		$	143,257,024			$	91,746,529
Used vehicles			38,988,272				38,936,734
Service, parts and others			43,529,102				36,724,157
Finance and insurance, net			19,407,653				14,378,808
Total revenue			245,182,051				181,786,228
Cost of Sales
New vehicles			115,378,848				80,406,382
Used vehicles			31,746,228				34,146,250
Service, parts and others			23,476,601				19,197,651
Total cost of sales			170,601,677				133,750,283
Gross profit			74,580,374				48,035,945
Selling, general and administrative expenses			43,111,337				35,469,797
Depreciation and amortization expenses			813,507				871,389
Operating income			30,655,530				11,694,759
Other Income (Expense)
Floor plan interest expense			(491,915	)			(1,247,326	)
Interest expense – other			(215,698	)			(352,464	)
Interest income			163,807				269,946
Other income (expense)			568,870				378,350
Total other income (expense)			25,064				(951,494	)
Net income		$	30,680,594			$	10,743,265

 

See accompanying Notes to Condensed Combined Financial Statements

 

 

RideNow Group and Affiliates

Condensed Combined Statements of Owners’ Equity

(Unaudited)

 

		Owners’ Equity
Balance at December 31, 2020		$	109,421,016
Contributions			-
Distributions			(13,559,436	)
Net income			30,680,594
Balance at March 31, 2021		$	126,542,174
Balance at December 31, 2019		$	77,762,608
Contributions			-
Distributions			(3,560,017	)
Net income			10,743,265
Balance at March 31, 2020		$	84,945,856

 

See accompanying Notes to Condensed Combined Financial Statements

 

 

RideNow Group and Affiliates

Condensed Combined Statements of Cash Flows

(Unaudited)

 

		For the Three Months Ended March 31,
		2021				2020
CASH FLOWS FROM OPERATING ACTIVITIES
Net Income		$	30,680,594			$	10,743,265
Adjustments to reconcile net income to net cash provided by operating activities:			-				-
Loss on disposal of property and equipment			-				71
Depreciation and amortization			813,507				881,389
Provision for allowance for doubtful accounts			58,691				(79,732	)
Contracts in transit			(6,584,338	)			(822,596	)
Accounts receivable			(2,547,921	)			(2,573,490	)
Accounts receivable – related parties			(39,555,172	)			(7,328,101	)
Inventories			5,669,609				(6,863,277	)
Prepaid expenses			(222,631	)			(231,618	)
Other assets			9,135				4,132,107
Floor plan payable, net			(6,019,354	)			9,995,404
Accounts payable			243,479				(8,187,365	)
Payables to related parties			2,511,257				9,907,560
Accrued liabilities			2,016,491				(362,493	)
Net cash (used in) provided by operating activities			(12,926,653	)			9,211,124
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of property and equipment			(347,927	)			(218,286	)
Proceeds from sale of property and equipment			61,758				-
Net cash used in investing activities			(286,169	)			(218,286	)
CASH FLOWS FROM FINANCING ACTIVITIES
Payments received on notes receivables			245,562				-
Proceeds from borrowings from related party			(126,000	)			(1,299,739	)
Payments of revolving line of credit			-				(16,000,000	)
Payments of borrowings from bank			(585,000	)			(585,000	)
Payments on other notes payable			(81,250	)			693,518
Net change in finance lease liabilities			(206,169	)			(166,414	)
Distributions to owners			(13,559,436	)			(3,560,017	)
Net cash (used in) financing activities			(14,312,293	)			(20,917,652	)
DECREASE IN CASH AND CASH EQUIVALENTS			(27,525,115	)			(11,924,814	)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD			31,862,284				4,980,718
CASH AND CASH EQUIVALENTS AT END OF PERIOD		$	4,337,169			$	(6,944,096	)

 

See accompanying Notes to Condensed Combined Financial Statements

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

NOTE 1 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Nature of Business

 

RideNow Group and Affiliates, a non-legal entity, (“RideNow” or “The Group” or the “Company”) is a collection of franchised dealerships operating in the powersports industry. The Group is engaged in the sale of new and used motorcycles, all-terrain vehicles, personal watercraft, other powersports vehicles, and related products and services, including repair and maintenance services, parts and accessories, riding gear, and apparel. As of December 31, 2020, RideNow owned and operated more than 45 retail dealerships in the United States, predominately in the Sunbelt region. The core brands sold by RideNow are Harley-Davidson, Honda, Yamaha, Kawasaki, Suzuki, Bombardier, Polaris, BMW, Ducati and Triumph, which are sold through franchise dealer agreements.

 

Basis of Presentation

 

The Condensed Combined Financial Statements include the accounts of the following affiliated companies: CMG Powersports Inc., America’s Powersports, Inc., Woods Fun Center, LLC, San Diego House of Motorcycles, LLC, APS of Oklahoma, LLC, APS of Georgetown, LLC, APS of Ohio, LLC, APS of Texas, LLC, C&W Motors, Inc., BJ Motorsports, LLC, Coyote Motorsports - Allen, LTD, Coyote Motorsports - Garland, LTD, East Valley Motorcycles, LLC, Glendale Motorcycles, LLC, JJB Properties, LLC, Metro Motorcycle, Inc., RideNow Carolina, LLC, RideNow, LLC, Ride USA, LLC, Top Cat Enterprises, LLC, Tucson Motorcycle, Inc., Tucson Motorsports, Inc., YSA Motorsports, LLC, RN Tri-Cities, LLC, ECHD Motorcycles, LLC, IOT Motorcycles, LLC, RideNow 6 Garland, LLC, RideNow Gainesville, LLC, RNKC, LLC, RNMC Daytona, LLC, TC Motorcycles, LLC, Ride Now 5 Allen, LLC, RHND Ocala, LLC and Bayou Motorcycles, LLC.

 

These condensed combined financial statements were prepared on a combined basis using the accrual method of accounting. All transactions and accounts between and among the combined entities have been eliminated.

 

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. In preparing these financial statements, management has made its best estimates and judgments of certain amounts included in the financial statements. RideNow bases its estimates and judgments on historical experience and other assumptions that management believes are reasonable. However, application of these accounting policies involves the exercise of judgment and use of assumptions as to future uncertainties and, as a result, actual results could differ materially from these estimates. RideNow periodically evaluates estimates and assumptions used in the preparation of the financial statements and make changes on a prospective basis when adjustments are necessary. The critical accounting estimates made in the accompanying Condensed Combined Financial Statements include certain assumptions related to goodwill and other intangible assets. Other significant accounting estimates include certain assumptions related to long-lived assets, assets held for sale, accruals for chargebacks against revenue recognized from the sale of finance and insurance products, certain legal proceedings, and estimated tax liabilities. Actual results could differ from those estimates.

 

Reclassifications

 

Certain amounts in the Condensed Combined Statement of Cash Flows for the quarter ended March 31, 2020, have been reclassified for consistency with other amounts in the condensed combined financial statements. Specifically, the Net Income and Distributions to Owners amounts on the Statement of Cash Flows for the quarter ended March 31, 2020, have been revised to agree to the corresponding amounts on the Condensed Combined Statement of Operations and the Condensed Combined Statement of Owners’ Equity.

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

Revenue from Contracts with Customers

 

RideNow adopted ASU 2014-09 Revenue from Contracts with Customers and all subsequent amendments to the ASU, collectively referred to as Accounting Standards Codification (ASC) Topic 606, which (i) creates a single framework for recognizing revenue from contracts with customers that fall within its scope. RideNow’s goods and services that fall within the scope of Topic 606 are recognized as revenue when promised goods or services are transferred to customers in amounts that reflect the consideration to which RideNow expects to be entitled in exchange for those goods or services.

 

Accounting for Leases

 

In February 2016, the Financial Accounting Standards Board (“FASB”) issued an accounting standard update (ASC Topic 842) that amends the accounting guidance on leases. The new standard establishes a right-of-use (ROU) model that requires a lessee to record an ROU asset and a lease liability on the balance sheet for all leases with terms longer than 12 months. Leases are classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. The FASB also subsequently issued amendments to the standard, including providing an additional and optional transition method to adopt the new standard, described below, as well as certain practical expedients related to land easements and lessor accounting.

 

The accounting standard update originally required the use of a modified retrospective approach reflecting the application of the standard to the leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements with the option to elect certain practical expedients. A subsequent amendment to the standard provides an additional and optional transition method that allows entities to initially apply the new leases standard at the adoption date and recognize a cumulative effect adjustment to the opening balance of retained earnings in the period of adoption. RideNow adopted this accounting standard effective January 1, 2018, using the optional transition method with no restatement of comparative periods.

 

RideNow elected certain practical expedients available under the transition guidance within the new standard, which among other things, allowed it to carry forward the historical lease classification of RideNow’s existing leases. RideNow did not elect the use-of-hindsight or the practical expedient pertaining to land easements; the latter not being applicable to RideNow. The new standard also provides practical expedients for an entity’s ongoing accounting. RideNow elected the short- term lease recognition exemption for all leases that qualify. As a result, for those leases that qualify, RideNow will not recognize ROU assets or lease liabilities, and RideNow did not recognize ROU asset or lease liabilities for existing short-term leases of those assets in transition. RideNow also elected the practical expedient to not separate lease and non-lease components of leases for the majority of RideNow classes of underlying assets.

 

NOTE 2 – REVENUE FROM CONTRACTS WITH CUSTOMERS

 

New and Used Recreational Vehicles

 

RideNow sells new and used recreational vehicles. The transaction price for a recreational vehicle sale is determined with the customer at the time of sale. Customers often trade in their own recreational vehicle to apply toward the purchase of a retail new or used recreational vehicle. The “trade-in” recreational vehicle is a type of noncash consideration measured at fair value, based on external and internal market data for a specific recreational vehicle, and applied as payment of the contract price for the purchased recreational vehicle.

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

When RideNow sells a new or used recreational vehicle, transfer of control typically occurs at a point in time upon delivery of the vehicle to the customer, which is generally at the time of sale, as the customer is able to direct the use of, and obtain substantially all benefits from the recreational vehicle at such time. RideNow does not directly finance its customer’s purchases or provide leasing. In many cases, RideNow arranges third- party financing for the retail sale or lease of recreational vehicles to customers in exchange for a fee paid to RideNow by a third-party financial institution. RideNow receives payment directly from the customer at the time of sale or from a third-party financial institution (referred to as contracts-in-transit) within a short period of time following the sale. RideNow establishes provisions, which are not significant, for estimated returns and warranties on the basis of both historical information and current trends.

 

Parts and Service

 

RideNow sells parts and vehicle services related to customer-paid repairs and maintenance, repairs and maintenance under manufacturer warranties and extended service contracts, and collision-related repairs. RideNow also sells parts through wholesale and retail counter channels.

 

Each repair and maintenance service is a single performance obligation that includes both the parts and labor associated with the vehicle service. Payment for each vehicle service work is typically due upon completion of the service, which is generally completed within a short period from contract inception. The transaction price for repair and maintenance services is based on the parts used, the number of labor hours applied, and standardized hourly labor rates. The performance obligation for repair and maintenance service are satisfied over time and create an asset with no alternative use and with an enforceable right to payment for performance completed to date. Revenue is recognized over time based on a direct measurement of labor hours, parts and accessories that are allocated to open service and repair orders at the end of each reporting period. As a practical expedient, the time value of money is not considered since repair and maintenance service contracts have a duration of one year or less. The transaction price for wholesale and retail counter parts sales is determined at the time of sale based on the quantity and price of each product purchased. Payment is typically due at time of sale, or within a short period following the sale. RideNow establishes provisions, which are not significant, for estimated parts returns based on historical information and current trends. Delivery method of wholesale and retail counter parts vary.

 

RideNow generally considers control of wholesale and retail counter parts to transfer when the products are shipped, which typically occurs the same day as or within a few days of sale. RideNow also offers customer loyalty points for parts and services for select franchises. RideNow satisfies its performance obligations and recognizes revenue when the loyalty points are redeemed. Amounts deferred related to the customer loyalty programs are insignificant.

 

Finance and Insurance

 

RideNow sells and receives commissions on the following types of finance and insurance products: extended service contracts, maintenance programs, guaranteed auto protection, tire and wheel protection, and theft protection products, among others. RideNow offers products that are sold and administered by independent third parties, including the vehicle manufacturers’ captive finance subsidiaries.

 

Pursuant to the arrangements with these third-party providers, RideNow sells the products on a commission basis. For the majority of finance and insurance product sales, RideNow’s performance obligation is to arrange for the provision of goods and services by another party. RideNow’s performance obligation is satisfied when this arrangement is made, which is when the finance and insurance product is delivered to the end customer, generally at the time of the vehicle sale. As agent, RideNow recognizes revenue in the amount of any fee or commission to which it expects to be entitled, which is the net amount of consideration that it retains after paying the third-party provider the consideration received in exchange for the goods or services to be fulfilled by that party.

 

RideNow’s customers are concentrated in the Sunbelt region. There are no significant judgements or estimates required in determining the satisfaction of the performance obligations or the transaction price allocated to the performance obligations. As revenue are recognized at a point-in-time, costs to obtain the customer (i.e. commissions) do not require capitalization.

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

Disaggregation of Revenue

 

The significant majority of RideNow’s revenue is from contracts with customers. In the following tables, revenue is disaggregated by major lines of goods and services and timing of transfer of goods and services. We have determined that these categories depict how the nature, amount, timing, and uncertainty of our revenue and cash flows are affected by economic factors.

 

Revenue from contracts with customers consists of the following:

 

		Three Months Ended March 31,
		2021				2020
Revenue:
New vehicle		$	143,257,024			$	91,746,529
Used vehicle			38,988,272				38,936,734
New and used vehicle			182,245,296				130,683,263
Service, parts and others			43,529,102				36,724,157
Finance and insurance, net			19,407,653				14,378,808
Total revenue		$	245,182,051			$	181,786,228
Timing of revenue recognition:
Goods and services transferred at a point in time		$	218,207,583			$	160,667,398
Goods and services transferred over time (1)			26,974,468				21,697,694
Total revenue		$	245,182,051			$	182,365,092

 

(1)

Represents revenue recognized during the period for vehicle repair and maintenance services.

 

NOTE 3 – ACCOUNTS RECEIVABLE

 

Accounts receivable consisted of the following as of March 31, 2021 and December 31, 2020.

 

		3/31/21				12/31/20
Trade receivables		$	3,615,139			$	3,145,226
Factory receivables			5,310,814				6,624,129
Other receivables			3,897,486				720,861
Total accounts receivables			12,823,439				10,490,216
Less: Allowance for doubtful accounts			(311,035	)			(467,042	)
Accounts receivables, net		$	12,512,404			$	10,023,174

 

NOTE 4 – INVENTORIES AND VEHICLE FLOOR PLAN PAYABLES

 

Inventories consisted of the following as of March 31, 2021 and December 31, 2020.

 

		3/31/21				12/31/20
New vehicles		$	61,334,528			$	67,416,505
Used vehicles			21,423,667				22,225,209
Parts, accessories and other			21,321,717				20,107,807
Total cost		$	104,079,912			$	109,749,521

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

The components of vehicle Floor Plan payables at March 31, 2021 and December 31, 2020.

 

		3/31/21				12/31/20
Vehicle Floor Plan payable - trade		$	24,607,851			$	18,516,327
Vehicle Floor Plan payable – non-trade			37,906,474				50,017,352
Vehicle Floor Plan payable		$	62,514,325			$	68,533,679

 

Vehicle Floor Plan payable - trade reflects amounts borrowed to finance the purchase of specific new and, to a lesser extent, used vehicle inventories with the corresponding manufacturers’ captive finance subsidiaries (“trade lenders”). Vehicle Floor Plan payable-non-trade represents amounts borrowed to finance the purchase of specific new and, to a lesser extent, used vehicle inventories with non-trade lenders, as well as amounts borrowed under RideNow’s secured used vehicle Floor Plan facilities. Changes in vehicle Floor Plan payable- trade are reported as operating cash flows and changes in vehicle Floor Plan payable-non-trade are reported as financing cash flows in the accompanying Condensed Combined Statements of Cash Flows.

 

RideNow’s inventory costs are generally reduced by manufacturer holdbacks, incentives, Floor Plan assistance, and non-reimbursement-based manufacturer advertising rebates, while the related vehicle Floor Plan payables are reflective of the gross cost of the vehicle. The vehicle Floor Plan payables, as shown in the above table, will generally also be higher than the inventory cost due to the timing of the sale of a vehicle and payment of the related liability. Vehicle Floor Plan facilities are due on demand, but in the case of new vehicle inventories, are generally paid within several business days after the related vehicles are sold. Vehicle Floor Plan facilities are primarily collateralized by vehicle inventories and related receivables.

 

NOTE 5 – PROPERTY AND EQUIPMENT, NET

 

The following table summarizes property and equipment, net of accumulated depreciation and amortization as of March 31, 2021 and December 31, 2020.

 

		3/31/21				12/31/20
Equipment		$	5,499,126			$	4,231,451
Furniture and fixtures			20,665,287				19,307,497
Buildings			12,043,419				13,522,538
Vehicles			4,599,044				4,191,156
Leasehold improvements			12,174,968				10,296,570
Construction in progress			115,653				26,183
Total property and equipment			55,097,497				51,575,395
Less: Accumulated depreciation			(31,847,846	)			(27,870,165	)
sProperty and equipment, net		$	23,249,651			$	23,705,230

 

Depreciation and amortization expense for the Three Months ended March 31, 2021 and 2020 was $803,507 and $881,389, respectively.

 

NOTE 6 – GOODWILL AND INTANGIBLE ASSETS, NET

 

RideNow’s acquisitions have resulted in the recording of goodwill and other intangible assets. Goodwill is an asset representing operational synergies, franchise rights and future economic benefits arising from other assets acquired in a business combination that are not individually identified and separately recognized. Other intangible assets represent non-compete agreements entered into with sellers from the acquired businesses and are not significant to the condensed combined financial statements.

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

The changes in goodwill for the three months ended March 31, 2021 and the year ended December 31, 2020 are as follows:

 

		Goodwill
Balance at December 31, 2019		$	54,988,384
Acquisitions			305,838
Impairments			-
Balance at December 31, 2020			55,294,222
Acquisitions			-
Impairments			-
Balance at March 31, 2021		$	55,294,222

 

NOTE 7 - LINE OF CREDIT

 

RideNow has a $19,000,000 revolving line of credit established at a bank. RideNow participates in the line of credit with certain affiliates. Interest is payable monthly at the lesser of the prime rate (3.25% and 4.75% at March 31, 2021 and 2020, respectively) or LIBOR plus 2.75% (2.98% and 4.98% at March 31, 2021 and 2020, respectively). The line of credit is secured by substantially all of the assets of the participating affiliates. The line of credit has been amended and renewed multiple times under similar terms since its inception and has a maturity date of January 15, 2022. The outstanding balance on the line of credit was $0- and $0 at March 31, 2021 and December 31, 2020, respectively.

 

NOTE 8 – NOTES PAYABLE

 

The following consist of a note payable to a bank and other third-parties as of March 31, 2021 and December 31, 2020:

 

		3/31/21				12/31/20
Northern Trust Bank term loan agreement that requires monthly principal payments of approximately $190,500 and accrues interest at the one-month LIBOR plus 2.0%. This loan is guaranteed by the owners of CMG Powersports, Inc. and matures July 1, 2021.		$	5,142,857			$	5,714,286
Unsecured note payable to P&D Motorcycles in the original amount of $1,724,000 with an interest rate of 4% and note payable matures on July 1, 2022			1,153,919				1,248,740
PPP Loans dated April 6, 2020. Payments of principal and interest were deferred until August 6, 2021, at which time the Companies will make equal payments of principal and interest through maturity, which is April 6, 2026.			19,039,229				19,039,229
Total			25,336,005				26,002,255
Less: Current maturities			(7,467,783	)			(8,093,444	)
Long-term maturities of note payables - bank		$	17,868,222			$	17,908,811

 

The future maturities of long-term note payables to other as of March 31, 2021:

 

2021		$	7,467,783
2022			5,286,584
2023			5,812,135
2024			5,077,128
2025			1,692,376
Total of long-term notes payable - other		$	25,336,006

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

Note Payable to Northern Trust Bank

 

RideNow is a collective borrower to a $16,000,000 term loan agreement with Northern Trust Bank held by CMG Powersports, Inc. The term loan agreement requires monthly principal payments of approximately $190,500 and accrues interest at the one-month LIBOR plus 2.0%. This loan is guaranteed by the owners of CMG Powersports, Inc. The term loan includes required covenants to be met. Management believes RideNow is in compliance with these covenants as the three months ended March 31, 2021 and 2020. For the three months ended March 31, 2021 and 2020 interest expense was $45,329 and $64,827, respectively.

 

Note Payable to P&D Motorcycles

 

On June 28, 2017 TC Motorcycles, LLC “DBA–RideNow Powersports Jacksonville” (the buyer) entered into a promissory note with P&D Motorcycles (the seller) as part of an acquisition. The original principal sum was $1,724,000 accruing interest at 4% including 59 monthly payments of $17,454 with final balloon payment due July 1, 2022. For the three months ended March 31, 2021 and 2020 interest expense was $13,355 and $18,253, respectively.

 

PPP Loan

 

On April 6, 2020, RideNow entered into loan agreements and related promissory notes (the “SBA Loan Documents”) to receive U.S. Small Business Administration Loans (the “SBA Loans”) pursuant to the Paycheck Protection Program (the “PPP”) established under the CARES Act, in the aggregate amount of $19,039,229 (the “Loan Proceeds”). The Companies received the Loan Proceeds on April 6, 2020, and under the SBA Loan Documents, the SBA Loans had an initial maturity date of April 5, 2022 and an annual interest rate of 0.98%. Payment of principal and interest, to be paid monthly, on the PPP Loans can be prepaid by the Companies at any time and was originally deferred through October 5, 2020. On October 7, 2020, the Small Business Administration published guidance of its interpretation of the CARES ACT and of the Paycheck Protection Program Interim Final Rules that indicates, pursuant to the PPP Flexibility Act of 2020, the deferral period for borrower payments of principal, interest and fees on all PPP was extended 10 months after the borrower’s loan forgiveness period. Additionally, the SBA lender agreed to extend the maturity pursuant to the Interim Final Rules. As a result, monthly equal payments of principal and interest will begin August 6, 2021, with the last payment due April 6, 2025.

 

NOTE 9 – RELATED PARTY TRANSACTIONS

 

Due from (to) related parties consist of the following balances as of March 31, 2021 and December 31, 2020.

 

		3/31/21				12/31/20
Accounts receivable-related parties		$	96,134,436			$	84,535,861
Notes receivable – related parties			1,018,863				1,264,425
Total balances due from related parties			97,153,299				85,800,286
Accounts payable – related parties			30,126,468				27,615,211
Notes payable – related parties			7,285,322				7,411,322
Total balances due to related parties		$	37,411,790			$	35,026,533

 

Accounts Receivable and Payables

 

Receivables Due from Related Parties

 

		3/31/21				12/31/20
Cash sweep receivables		$	93,202,687			$	84,478,128
Other receivables due from related parties			2,931,749				57,733
Total receivables due from related parties		$	96,134,436			$	84,535,861

 

Cash Sweep Account Receivables/Payables

 

RideNow is a participant in a Cash Sweep Account arrangement with a bank and its affiliates. The Cash Sweep Account combines the cash balances of all the participating affiliates and invests excess cash on a daily basis. Interest is paid to each participant based on the average cash balance in the Cash Sweep account over the course of the year. Any participant that develops an overdraft cash balance is charged interest. For the years ended March 31, 2021 and 2020, the Cash Sweep Account was earning interest at 1.10% and 3.11%, respectively, and for overdraft balances, the interest charged was 3.25% and 3.50%, respectively.

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

		3/31/21				12/31/20
Cash Sweep Accounts:
Related party receivable		$	93,202,687			$	84,478,128
Related party payable			(26,785,998	)			(27,956,598	)
Net Cash Sweep Account Balance		$	66,416,689			$	56,521,530

Payables Due to Related Parties

		3/31/21				12/31/20
Cash sweep payables		$	26,785,998			$	27,956,598
Other payables due to related parties			3,340,470				(341,387	)
Total payables due to related parties		$	30,126,468			$	27,615,211

 

Notes payable – Related Parties

 

The following table summarizes the notes payable to related parties as of March 31, 2021 and December 31, 2020:

 

		3/31/21				12/31/20
Various unsecured notes payable to Steele IV, LLLP, a related party through common ownership; monthly principal payments range from $10,000 to $20,000; interest accruing at rates ranging from LIBOR + 1.3% to LIBOR + 2.0%		$	3,000,000			$	3,000,000
Various unsecured notes payable to RideNow Management, LLLP, a related party through common ownership; monthly principal payments ranging from $7,000 to $13,500; interest accruing at rates ranging from LIBOR + 0.6% to LIBOR + 1.3%.			1,285,322				1,411,322
Various unsecured notes payable to Denex, LLLP, a related party through common ownership; monthly principal payments ranging from $10,000 to $20,000 interest accruing at rates ranging from LIBOR + 0.5% to LIBOR + 2.0%.			3,000,000				3,000,000
Total			7,285,322				7,411,322
Less: Current maturities			(504,000	)			(504,000	)
Long-term maturities due to related party		$	6,781,322			$	6,907,322

 

The future maturities of long-term note payables to related parties as of March 31, 2021:

 

2021		$	504,000
2022			504,000
2023			6,277,322
Total maturities of long-term notes payable – related parties		$	7,285,322

 

Related Party Leases

 

Included in the leases are leases for twenty-five (25) locations which are owned by the owners of RideNow or their affiliates. Lease expense charged to operations in connection with these related party leases was $10,126,669 and $8,715,266 for the three months ended March 31, 2021 and 2020, respectively.

 

Shared Services

 

RideNow receives administrative support from RideNow Management, LLLP and Coulter Management Group, LLLP, which are related parties due to common ownership. Total administrative services received from these entities and charged to operations were $252,457 and $212,687 for the years ending March 31, 2021 and 2020, respectively.

 

NOTE 10 – SUPPLEMENTAL CASH FLOW INFORMATION

 

The following table includes supplemental cash flow information, including noncash investing and financing activity for the three months ended March 31,

 

		3/31/21				3/31/20
Cash paid for interest		$	707,613			$	1,599,790
Non-cash activities:			-				-

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

NOTE 11 - RETIREMENT PLAN

 

RideNow maintains a 401(k) plan (the Plan) covering substantially all employees who are over the age of 21 and meet specified service requirements. Participants may voluntarily contribute to the Plan, not to exceed the maximum limits imposed by the Internal Revenue Service regulations. Contributions to the Plan are made by the participants to their individual accounts through payroll withholding. Additionally, RideNow provides a matching contribution of 25% up to the first 6% of participants’ annual earnings with a maximum of $2,000 annually. RideNow’s contribution to the Plan was $91,317 and $103,447 for the three months ended March 31, 2021 and 2020, respectively.

 

NOTE 12 – CONTINGENCIES

 

From time-to-time, RideNow is contingently liable in respect to lawsuits and claims incidental to the ordinary course of its operations. Management has determined that the outcome of any such matters will not have a material effect on the Combined Financial Statements. No provision has been made in the accompanying Condensed Combined Financial Statements for losses, if any, that might result from the ultimate outcome of such matters.

 

Coronavirus Pandemic (COVID-19)

 

Subsequent to year-end, the World Health Organization declared the spread of Coronavirus Disease (COVID- 19) a worldwide pandemic. The COVID-19 pandemic is having significant effects on global markets, supply chains, businesses, and communities. Specific to RideNow, COVID-19 may impact various parts of its 2020 operations and financial results. Management believes RideNow is taking appropriate actions to mitigate the negative impact. However, the full impact of COVID-19 is unknown and cannot be reasonably estimated at March 31, 2021.

 

NOTE 13 – BUSINESS AND CREDIT CONCENTRATIONS

 

Financial instruments that potentially subject us to concentrations of credit risk consist principally of cash on deposit with financial institutions. At times, amounts invested with financial institutions exceed Federal Deposit Insurance Corporation insurance limits. Concentrations of credit risk with respect to receivables are limited primarily to receivables from powersports manufacturers or distributors which RideNow holds franchises, totaling approximately $5,310,000 and $6,624,000 at March 31, 2021 and December 31, 2020, respectively.

 

RideNow is subject to a concentration of risk in the event of financial distress or other adverse events related to any of the manufacturers whose franchised dealerships are included in RideNow’s brand portfolio. RideNow purchases new vehicle inventory from various powersports manufacturers at the prevailing prices available to all franchised dealerships. In addition, RideNow finances a substantial portion of its new vehicle inventory with manufacturer-affiliated finance companies. RideNow’s results of operations could be adversely affected by the manufacturers’ inability to supply RideNow dealerships with an adequate supply of new vehicle inventory and related floor plan financing. RideNow also has concentrations of risk related to the geographic markets in which RideNow dealerships operate. Changes in overall economic, retail powersports or regulatory environments in one or more of these markets could adversely impact the results of RideNow’s operations.

 

Concentrations of credit risk with respect to non-manufacturer trade receivables are limited due to the wide variety of customers and markets in which RideNow’s products are sold as well as their dispersion across many different geographic areas in the United States. Consequently, at March 31, 2021, RideNow does not consider itself to have any significant non-manufacturer concentrations of credit risk.

 

NOTE 14 – FINANCIAL INSTRUMENTS AND FAIR VALUE MEASUREMENTS

 

The fair value of a financial instrument represents the amount at which the instrument could be exchanged in a current transaction between willing parties, other than in a forced sale or liquidation. Fair value estimates are made at a specific point in time, based on relevant market information about the financial instrument. These estimates are subjective in nature and involve uncertainties and matters of judgment, and therefore cannot be determined with precision.

 

Accounting standards define fair value as the price that would be received from selling an asset or paid to transfer a liability in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants at the measurement date. Accounting standards establish a fair value hierarchy which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value and also establishes the following three levels of inputs that may be used to measure fair value:

 

Level 1 Quoted prices in active markets for identical assets or liabilities

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

Level 2 Observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities; quoted market prices in markets that are not active; or model-derived valuations or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.

 

Level 3 Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.

 

The following methods and assumptions were used by us in estimating fair value disclosures for financial instruments:

 

●

Cash and cash equivalents, receivables, other current assets, vehicle Floor Plan payable, accounts payable, other current liabilities, and variable rate debt: The amounts reported in the accompanying Condensed Combined Balance Sheets approximate fair value due to their short-term nature or the existence of variable interest rates that approximate prevailing market rates.

 

 

●

Fixed rate long-term debt: RideNow’s fixed rate long-term debt consists primarily of amounts outstanding under its senior unsecured notes. The amounts reported in the accompanying Combined Balance Sheets approximate fair value due to its senior unsecured notes using quoted prices for the identical liability (Level 1).

 

Nonfinancial assets such as goodwill, other intangible assets, and long-lived assets held and used are measured at fair value when there is an indicator of impairment and recorded at fair value only when impairment is recognized or for a business combination. The fair values less costs to sell of long-lived assets or disposal groups held for sale are assessed each reporting period they remain classified as held for sale. Subsequent changes in the held for sale long-lived asset’s or disposal group’s fair value less cost to sell (increase or decrease) are reported as an adjustment to its carrying amount, except that the adjusted carrying amount cannot exceed the carrying amount of the long-lived asset or disposal group at the time it was initially classified as held for sale.

 

NOTE 15 – SEGMENT INFORMATION

 

As of March 31, 2021, and 2020, RideNow had two operating segments: (1) Harley-Davidson motor sports dealerships and (2) Metric motor sports dealerships (representing all Non-Harley-Davidson motor sports dealerships). RideNow’s Harley-Davidson dealership segment is comprised of retail franchises that sell new and used motorcycles and related accessories, riding gear and apparel, replacement parts, equipment repair and maintenance services, and also arrange for the delivery of finance and insurance products through third party providers. RideNow’s Metric dealerships segment is comprised of retail franchises that sell new and used motorcycles (non-Harley-Davidson) and other motor sports equipment, including all-terrain vehicles, utility terrain vehicles, boats, personal watercraft, snowmobiles and scooters from manufacturers such as Honda, Yamaha, Kawasaki, Suzuki, Bombardier, Polaris, BMW, Ducati and Triumph. Additionally, dealerships in RideNow’s Metric segment sell related products and services, including repair and maintenance services and also arrange for the delivery of finance and insurance products through third party providers.

 

RideNow has determined that the operating segments also represent the reportable segments. The reportable segments identified above are the business activities of RideNow for which discrete financial information is available and for which operating results are regularly reviewed by the chief operating decision maker to assess operating performance and allocate resources. RideNow’s chief operating decision maker is comprised of its two owners, who are also RideNow’s (1) Chairman of the Board and (2) Chief Executive Officer.

 

The following tables provide reportable segment revenue, gross profit, Floor Plan interest expense, segment income and inventories:

 

		For the Three Months Ended March 31, 2021
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
Revenue		$	56,220,157			$	188,961,894			$	245,182,051
Gross Profit		$	17,324,722			$	57,255,652			$	74,580,374
Gross profit %			30.8	%			30.3	%			30.4	%
Floor Plan interest expense		$	164,113			$	327,802			$	491,915
Segment income%			0.3	%			0.2	%			0.2	%
Segment income (1)		$	4,463,386			$	25,700,229			$	30,163,615
Segment income %			7.9	%			13.6	%			12.3	%
Inventories		$	28,059,006			$	76,020,906			$	104,079,912

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

		For the Three Months Ended March 31, 2020
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
Revenue		$	55,648,591			$	126,716,501			$	182,365,092
Gross Profit		$	14,773,122			$	33,262,823			$	48,035,945
Gross profit %			27.60	%			23.40	%			24.70	%
Floor Plan interest expense		$	280,802			$	966,524			$	1,247,326
Segment income%			0.5	%			0.8	%			0.7	%
Segment income (1)		$	2,671,684			$	7,775,749			$	10,447,433
Segment income %			5.30	%			4.50	%			4.70	%
Inventories		$	50,774,021			$	173,079,878			$	223,853,899

 

(1)

Segment income represents income for each reportable segment and is defined as income from operations less Floor Plan interest expense, which is the measure by which management allocates resources to its segments.

 

The following is a reconciliation of the total of the reportable segments’ segment income to the combined net income:

 

		For the Three Months Ended March 31,
		2021				2020
Reportable segment income		$	30,163,615			$	10,447,433
Corporate operating income/expense			-
Other interest expense			(215,698	)			(352,464	)
Interest income			163,807				269,946
Miscellaneous income			568,870				378,350
Combined net income		$	30,680,594			$	10,743,265

 

The following tables provide revenue by products and services:

 

		For the Three Months Ended March 31, 2021
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
New vehicles		$	21,415,487			$	121,841,537			$	143,257,024
Used vehicles			17,472,549				21,515,723				38,988,272
Service, parts and other			13,521,361				30,007,741				43,529,102
Finance and insurance income			3,810,760				15,596,893				19,407,653
		$	56,220,157			$	188,961,894			$	245,182,051

 

		For the Three Months Ended March 31, 2020
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
New vehicles		$	16,774,403			$	74,972,126			$	91,746,529
Used vehicles			21,799,962				17,175,170				38,975,132
Service, parts and other			13,418,447				23,846,176				37,264,623
Finance and insurance income			3,657,890				10,720,918				14,378,808
		$	55,650,702			$	126,714,390			$	182,365,092

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

NOTE 16 – BUSINESS COMBINATION

 

RideNow Transaction

 

On March 12, 2021, RumbleOn, Inc. announced a definitive agreement to combine with RideNow Group to create the only omnichannel customer experience in powersports and the largest publicly traded powersports dealership platform (the “RideNow Transaction”). Under the terms of the definitive agreement, RumbleOn will combine with up to 46 entities operating under the RideNow brand for a total consideration of up to $575.4 million, consisting of $400.4 million of cash and approximately 5.8 million shares of RumbleOn Class B Common Stock. RumbleOn will finance the cash consideration through a combination of up to $280.0 million of debt and the remainder through the issuance of new equity. RumbleOn has entered into a commitment letter with Oaktree Capital Management, L.P. ( “Oaktree”) to provide for the debt financing, subject to certain conditions (the “Oaktree Financing”). The number of shares to be issued to RideNow is subject to increase as described in the definitive agreement. The RideNow Transaction is subject to successful completion of the debt and equity financing, RumbleOn stockholder approval, manufacturer approval, other federal and state regulatory approvals, and other customary closing conditions as described in the definitive agreement. We expect to close the RideNow Transaction during the third quarter of 2021.

 

 

17

Exhibit 99.6

 

 

 

RIDENOW GROUP AND AFFILIATES

 

CONDENSED COMBINED FINANCIAL STATEMENTS

 

JUNE 30, 2021

 

 

 

 

RideNow Group and Affiliates

 

Table of Contents

 

Condensed Combined Balance Sheets	F-1
Condensed Combined Statements of Operations	F-2
Condensed Combined Statements of Owners’ Equity	F-3
Condensed Combined Statements of Cash Flows	F-4
Notes to Condensed Combined Financial Statements	F-5

 

 

RideNow Group and Affiliates

Condensed Combined Balance Sheets

(Unaudited)

 

		As of June 30, 2021				As of December 31, 2020
ASSETS
Current assets:
Cash and cash equivalents		$	5,830,482			$	3,905,686
Contracts in transit			10,149,513				10,736,791
Accounts receivable, net			16,028,725				10,023,174
Accounts receivable – related parties			72,071,921				84,535,861
Inventories, net			101,214,125				109,749,521
Prepaid expenses			1,864,297				1,625,109
Total current assets			207,159,063				220,576,142
Right-of-use assets			73,921,130				71,280,471
Property and equipment, net of accumulated depreciation			22,936,755				23,705,230
Goodwill			55,294,222				55,294,222
Note receivable – related party			1,026,605				1,264,425
Other non-current assets			259,615				288,758
Total assets		$	360,597,390			$	372,409,248
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable and accrued liabilities		$	43,002,834			$	36,806,476
Accounts payable – related parties			40,130,446				27,615,211
Floor plan notes payable			44,753,947				68,533,679
Revolving line of credit			6,000,000				-
Current portion of operating lease liabilities			17,459,193				15,755,805
Current portion of financing lease liabilities			3,984,945				4,059,496
Current portion of notes payable – related parties			1,159,322				504,000
Current portion of note payable – other			5,684,640				8,093,444
Total current liabilities			162,175,327				161,368,111
Long-term liabilities:
Notes payable – related parties			-				6,907,322
Long-term portion of operating lease liabilities			58,345,599				57,473,929
Long-term portion of financing lease liabilities			14,323,137				14,550,947
Note payable- PPP loans			-				16,923,759
Note payable – other			-				985,052
Other long-term liabilities			6,497,347				4,779,112
Total long-term liabilities			79,166,083				101,620,121
Total liabilities			241,341,410				262,988,232
Owners’ equity			119,255,980				109,421,016
Total liabilities and owners’ equity		$	360,597,390			$	372,409,248

 

See accompanying Notes to Condensed Combined Financial Statements

 

 

RideNow Group and Affiliates

Condensed Combined Statements of Operations

(Unaudited)

 

		Three-Months Ended June 30,								Six-Months Ended June 30,
		2021				2020				2021				2020
Revenue:
New vehicles		$	142,731,660			$	163,624,341			$	285,988,684			$	255,370,870
Used vehicles			56,344,912				41,552,540				95,333,184				80,489,274
Service, parts and others			47,480,825				40,534,371				91,009,927				77,258,528
Finance and insurance, net			21,633,640				22,271,089				41,041,293				36,649,897
Total revenue			268,191,037				267,982,341				513,373,088				449,768,569
Cost of revenue
New vehicles			112,811,489				136,783,464				228,190,337				217,189,846
Used vehicles			45,642,378				34,936,296				77,388,606				69,082,546
Service, parts and others			24,705,698				22,146,629				48,182,299				41,344,280
Total cost of sales			183,159,565				193,866,389				353,761,242				327,616,672
Gross profit			85,031,472				74,115,952				159,611,846				122,151,897
Selling, general and administrative			48,570,799				39,604,867				91,682,136				75,074,664
Depreciation and amortization			903,494				948,129				1,717,001				1,819,518
Operating income			35,557,179				33,562,956				66,212,709				45,257,715
Other Income (Expense)
Floor plan interest expense			(373,860	)			(547,006	)			(865,775	)			(1,794,332	)
Interest expense – other			(84,028	)			(318,462	)			(299,726	)			(670,926	)
Interest income			87,215				201,847				251,022				471,793
Miscellaneous income			19,340,670				255,759				19,909,540				634,109
Total other income (expense)			18,969,997				(407,862	)			18,995,061				(1,359,356	)
Net income		$	54,527,176			$	33,155,094			$	85,207,770			$	43,898,359

 

See accompanying Notes to Condensed Combined Financial Statements

 

 

RideNow Group and Affiliates

Condensed Combined Statements of Owners’ Equity

(Unaudited)

 

		Owner’s Equity
Balance at March 31, 2021		$	126,542,174
Contributions			-
Distributions			(61,813,370	)
Net income			54,527,176
Balance at June 30, 2021		$	119,255,980
Balance at December 31, 2020		$	109,421,016
Contributions			-
Distributions			(75,372,806	)
Net income			85,207,770
Balance at June 30, 2021		$	119,255,980
Balance at March 31, 2020		$	84,945,856
Contributions			-
Distributions			(26,061,859	)
Net income			33,155,094
Balance at June 30, 2020		$	92,039,091
Balance at December 31, 2019		$	77,762,608
Contributions			-
Distributions			(29,621,876	)
Net income			43,898,359
Balance at June 30, 2020		$	92,039,091

 

See accompanying Notes to Condensed Combined Financial Statements

 

 

RideNow Group and Affiliates

Condensed Combined Statements of Cash Flows

(Unaudited)

 

		Six Months Ended June 30,
		2021				2020
CASH FLOWS FROM OPERATING ACTIVITIES
Net income		$	85,207,770			$	43,898,359
Adjustments to reconcile net loss to net cash provided by operating activities:
Depreciation and amortization			1,727,001				1,394,768
Provision for allowance for doubtful accounts			204,147				57,654
PPP loans forgiven			(19,039,229	)			-
Changes in operating assets and liabilities:
Contracts in transit			587,278				(3,378,258	)
Accounts receivable			(6,209,698	)			(1,048,144	)
Accounts receivable – related parties			12,463,941				(31,566,574	)
Inventories			8,535,396				78,811,123
Prepaid expenses			(239,188	)			(194,776	)
Other assets			19,143				884,207
Floor plan notes, net			(23,779,732	)			(61,994,442	)
Accounts payable			6,130,757				(2,569,063	)
Payables to related parties			12,515,235				5,481,256
Accrued liabilities			1,718,233				(1,397,647	)
Net cash provided by operating activities			79,841,054				28,378,463
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of property and equipment			(948,526	)			(2,982,882	)
Proceeds from sale of property and equipment			-				-
Net cash (used in) investing activities			(948,526	)			(2,982,882	)
CASH FLOWS FROM FINANCING ACTIVITIES
Payments received on notes receivables			237,820				-
Payments on borrowings from related party			(6,252,000	)			(4,376,271	)
Proceeds from (payments of) revolving line of credit			6,000,000				(17,958,961	)
Payments of borrowings from bank			(585,000	)			(585,000	)
(Payments) borrowing on other notes payable			(693,385	)			5,156,429
Proceeds from PPP loans			-				19,039,229
Net change in finance lease liabilities			(302,361	)			2,359,037
Distributions to owners			(75,372,806	)			(29,621,876	)
Net cash (used in) financing activities			(76,967,732	)			(25,987,413	)
NET CHANGE IN CASH AND CASH EQUIVALENTS			1,924,796				(591,832	)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD			3,905,686				4,980,718
CASH AND CASH EQUIVALENTS AT END OF PERIOD		$	5,830,482			$	4,388,886

 

See accompanying Notes to Condensed Combined Financial Statements

 

 

RideNow Group and Affiliates

Notes to Condensed Combined Financial Statements

(Unaudited)

 

NOTE 1 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Nature of Business

 

RideNow Group and Affiliates, a non-legal entity, (“RideNow” or “The Group” or the “Company”) is a collection of franchised dealerships operating in the powersports industry. The Group is engaged in the sale of new and used motorcycles, all-terrain vehicles, personal watercraft, other powersports vehicles, and related products and services, including repair and maintenance services, parts and accessories, riding gear, and apparel. As of December 31, 2020, RideNow owned and operated more than 43 retail dealerships in the United States, predominately in the Sunbelt region. The core brands sold by RideNow are Harley-Davidson, Honda, Yamaha, Kawasaki, Suzuki, Bombardier, Polaris, BMW, Ducati and Triumph, which are sold through franchise dealer agreements.

 

Basis of Presentation

 

The Condensed Combined Financial Statements include the accounts of the following affiliated companies: CMG Powersports Inc., America’s Powersports, Inc., Woods Fun Center, LLC, San Diego House of Motorcycles, LLC, APS of Oklahoma, LLC, APS of Georgetown, LLC, APS of Ohio, LLC, APS of Texas, LLC, C&W Motors, Inc., BJ Motorsports, LLC, Coyote Motorsports - Allen, LTD, Coyote Motorsports - Garland, LTD, East Valley Motorcycles, LLC, Glendale Motorcycles, LLC, JJB Properties, LLC, Metro Motorcycle, Inc., RideNow Carolina, LLC, RideNow, LLC, Ride USA, LLC, Top Cat Enterprises, LLC, Tucson Motorcycle, Inc., Tucson Motorsports, Inc., YSA Motorsports, LLC, RN Tri-Cities, LLC, ECHD Motorcycles, LLC, IOT Motorcycles, LLC, RideNow 6 Garland, LLC, RideNow Gainesville, LLC, RNKC, LLC, RNMC Daytona, LLC, TC Motorcycles, LLC, Ride Now 5 Allen, LLC, RHND Ocala, LLC and Bayou Motorcycles, LLC.

 

These condensed combined financial statements were prepared on a combined basis using the accrual method of accounting. All transactions and accounts between and among the combined entities have been eliminated.

 

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. In preparing these financial statements, management has made its best estimates and judgments of certain amounts included in the financial statements. RideNow bases its estimates and judgments on historical experience and other assumptions that management believes are reasonable. However, application of these accounting policies involves the exercise of judgment and use of assumptions as to future uncertainties and, as a result, actual results could differ materially from these estimates. RideNow periodically evaluates estimates and assumptions used in the preparation of the financial statements and make changes on a prospective basis when adjustments are necessary. The critical accounting estimates made in the accompanying Condensed Combined Financial Statements include certain assumptions related to goodwill and other intangible assets. Other significant accounting estimates include certain assumptions related to long-lived assets, assets held for sale, accruals for chargebacks against revenue recognized from the sale of finance and insurance products, certain legal proceedings, and estimated tax liabilities. Actual results could differ from those estimates.

 

Reclassifications

 

Certain amounts in the Condensed Combined Statements of Operations, the Condensed Combined Statements of Owners’ Equity and the Condensed Statements of Cash Flows for the six months ended June 30, 2021 and 2020 have been revised for consistency with amounts shown for the three months ended June 30, 2021 and 2020 and also for consistency with the previously filed quarterly information for the three months ended March 31, 2021 and 2020.   

 

Revenue from Contracts with Customers

 

RideNow adopted ASU 2014-09 Revenue from Contracts with Customers and all subsequent amendments to the ASU, collectively referred to as Accounting Standards Codification (ASC) Topic 606, which (i) creates a single framework for recognizing revenue from contracts with customers that fall within its scope. RideNow’s goods and services that fall within the scope of Topic 606 are recognized as revenue when promised goods or services are transferred to customers in amounts that reflect the consideration to which RideNow expects to be entitled in exchange for those goods or services.

 

 

Accounting for Leases

 

In February 2016, the Financial Accounting Standards Board (“FASB”) issued an accounting standard update (ASC Topic 842) that amends the accounting guidance on leases. The new standard establishes a right-of-use (ROU) model that requires a lessee to record an ROU asset and a lease liability on the balance sheet for all leases with terms longer than 12 months. Leases are classified as either finance or operating, with classification affecting the pattern of expense recognition in the income statement. The FASB also subsequently issued amendments to the standard, including providing an additional and optional transition method to adopt the new standard, described below, as well as certain practical expedients related to land easements and lessor accounting.

 

The accounting standard update originally required the use of a modified retrospective approach reflecting the application of the standard to the leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements with the option to elect certain practical expedients. A subsequent amendment to the standard provides an additional and optional transition method that allows entities to initially apply the new leases standard at the adoption date and recognize a cumulative effect adjustment to the opening balance of retained earnings in the period of adoption. RideNow adopted this accounting standard effective January 1, 2018, using the optional transition method with no restatement of comparative periods.

 

RideNow elected certain practical expedients available under the transition guidance within the new standard, which among other things, allowed it to carry forward the historical lease classification of RideNow’s existing leases. RideNow did not elect the use-of-hindsight or the practical expedient pertaining to land easements; the latter not being applicable to RideNow. The new standard also provides practical expedients for an entity’s ongoing accounting. RideNow elected the short- term lease recognition exemption for all leases that qualify. As a result, for those leases that qualify, RideNow will not recognize ROU assets or lease liabilities, and RideNow did not recognize ROU asset or lease liabilities for existing short-term leases of those assets in transition. RideNow also elected the practical expedient to not separate lease and non-lease components of leases for the majority of RideNow classes of underlying assets.

 

NOTE 2 – REVENUE FROM CONTRACTS WITH CUSTOMERS

 

New and Used Recreational Vehicles

 

RideNow sells new and used recreational vehicles. The transaction price for a recreational vehicle sale is determined with the customer at the time of sale. Customers often trade in their own recreational vehicle to apply toward the purchase of a retail new or used recreational vehicle. The “trade-in” recreational vehicle is a type of noncash consideration measured at fair value, based on external and internal market data for a specific recreational vehicle, and applied as payment of the contract price for the purchased recreational vehicle.

 

When RideNow sells a new or used recreational vehicle, transfer of control typically occurs at a point in time upon delivery of the vehicle to the customer, which is generally at the time of sale, as the customer is able to direct the use of, and obtain substantially all benefits from the recreational vehicle at such time. RideNow does not directly finance its customer’s purchases or provide leasing. In many cases, RideNow arranges third- party financing for the retail sale or lease of recreational vehicles to customers in exchange for a fee paid to RideNow by a third-party financial institution. RideNow receives payment directly from the customer at the time of sale or from a third-party financial institution (referred to as contracts-in-transit) within a short period of time following the sale. RideNow establishes provisions, which are not significant, for estimated returns and warranties on the basis of both historical information and current trends.

 

 

Parts and Service

 

RideNow sells parts and vehicle services related to customer-paid repairs and maintenance, repairs and maintenance under manufacturer warranties and extended service contracts, and collision-related repairs. RideNow also sells parts through wholesale and retail counter channels.

 

Each repair and maintenance service is a single performance obligation that includes both the parts and labor associated with the vehicle service. Payment for each vehicle service work is typically due upon completion of the service, which is generally completed within a short period from contract inception. The transaction price for repair and maintenance services is based on the parts used, the number of labor hours applied, and standardized hourly labor rates. The performance obligation for repair and maintenance service are satisfied over time and create an asset with no alternative use and with an enforceable right to payment for performance completed to date. Revenue is recognized over time based on a direct measurement of labor hours, parts and accessories that are allocated to open service and repair orders at the end of each reporting period. As a practical expedient, the time value of money is not considered since repair and maintenance service contracts have a duration of one year or less. The transaction price for wholesale and retail counter parts sales is determined at the time of sale based on the quantity and price of each product purchased. Payment is typically due at time of sale, or within a short period following the sale. RideNow establishes provisions, which are not significant, for estimated parts returns based on historical information and current trends. Delivery method of wholesale and retail counter parts vary.

 

RideNow generally considers control of wholesale and retail counter parts to transfer when the products are shipped, which typically occurs the same day as or within a few days of sale. RideNow also offers customer loyalty points for parts and services for select franchises. RideNow satisfies its performance obligations and recognizes revenue when the loyalty points are redeemed. Amounts deferred related to the customer loyalty programs are insignificant.

 

Finance and Insurance

 

RideNow sells and receives commissions on the following types of finance and insurance products: extended service contracts, maintenance programs, guaranteed auto protection, tire and wheel protection, and theft protection products, among others. RideNow offers products that are sold and administered by independent third parties, including the vehicle manufacturers’ captive finance subsidiaries.

 

Pursuant to the arrangements with these third-party providers, RideNow sells the products on a commission basis. For the majority of finance and insurance product sales, RideNow’s performance obligation is to arrange for the provision of goods and services by another party. RideNow’s performance obligation is satisfied when this arrangement is made, which is when the finance and insurance product is delivered to the end customer, generally at the time of the vehicle sale. As agent, RideNow recognizes revenue in the amount of any fee or commission to which it expects to be entitled, which is the net amount of consideration that it retains after paying the third-party provider the consideration received in exchange for the goods or services to be fulfilled by that party.

 

RideNow’s customers are concentrated in the Sunbelt region. There are no significant judgements or estimates required in determining the satisfaction of the performance obligations or the transaction price allocated to the performance obligations. As revenue are recognized at a point-in-time, costs to obtain the customer (i.e. commissions) do not require capitalization.

 

Disaggregation of Revenue

 

The significant majority of RideNow’s revenue is from contracts with customers. In the following tables, revenue is disaggregated by major lines of goods and services and timing of transfer of goods and services. We have determined that these categories depict how the nature, amount, timing, and uncertainty of our revenue and cash flows are affected by economic factors.

 

 

Revenue from contracts with customers consists of the following:

 

		Three-Months Ended June 30,								Six-Months Ended June 30,
		2021				2020				2021				2020
Revenue:
New vehicle		$	142,731,660			$	163,624,341			$	285,957,987			$	255,370,861
Used vehicle			56,344,912				41,552,540				95,333,182				80,489,256
New and used vehicle			199,076,572				205,176,881				381,291,169				335,860,117
Service, parts and others			47,480,825				40,534,371				91,009,927				76,748,115
Finance and insurance, net			21,633,640				22,271,089				41,065,839				36,046,990
Total revenue			268,191,037				267,982,341				513,366,935				448,655,222
Timing of revenue recognition:
Goods and services transferred at a point in time			238,333,876				243,143,335				456,535,306				400,066,090
Goods and services transferred over time			29,857,161				24,839,006				56,831,629				48,589,132
Total revenue		$	268,191,037			$	267,982,341			$	513,366,935			$	448,655,222

 

NOTE 3 – ACCOUNTS RECEIVABLE

 

Accounts receivable consisted of the following as of June 30, 2021 and December 31, 2020.

 

		June 30, 2021				December 31, 2020
Trade receivables		$	4,323,424			$	3,145,226
Factory receivables			5,300,553				6,624,129
Other receivables			6,828,126				720,861
Total accounts receivables			16,452,103				10,490,216
Less: Allowance for doubtful accounts			(423,378	)			(467,042	)
Accounts receivables, net		$	16,028,725			$	10,023,174

 

NOTE 4 – INVENTORIES AND VEHICLE FLOOR PLAN NOTES PAYABLE

 

Inventories consisted of the following as of June 30, 2021 and December 31, 2020.

 

		June 30, 2021				December 31, 2020
New vehicles		$	42,073,801			$	67,416,505
Used vehicles			36,304,982				22,225,209
Parts, accessories and other			22,835,342				20,107,807
Total cost		$	101,214,125			$	109,749,521

 

The components of vehicle Floor Plan notes payable at June 30, 2021 and December 31, 2020.

 

		June 30, 2021				December 31, 2020
Vehicle Floor Plan notes payable – trade		$	17,070,794			$	18,516,327
Vehicle Floor Plan  notes payable – non-trade			27,683,153				50,017,352
Vehicle Floor Plan notes payable		$	44,753,947			$	68,533,679

 

Vehicle Floor Plan notes payable - trade reflects amounts borrowed to finance the purchase of specific new and, to a lesser extent, used vehicle inventories with the corresponding manufacturers’ captive finance subsidiaries (“trade lenders”). Vehicle Floor Plan notes payable-non-trade represents amounts borrowed to finance the purchase of specific new and, to a lesser extent, used vehicle inventories with non-trade lenders, as well as amounts borrowed under RideNow’s secured used vehicle Floor Plan facilities. Changes in vehicle Floor Plan notes payable- trade are reported as operating cash flows and changes in vehicle Floor Plan payable-non-trade are reported as financing cash flows in the accompanying Condensed Combined Statements of Cash Flows.

 

 

RideNow’s inventory costs are generally reduced by manufacturer holdbacks, incentives, Floor Plan assistance, and non-reimbursement-based manufacturer advertising rebates, while the related vehicle Floor Plan payables are reflective of the gross cost of the vehicle. The vehicle Floor Plan notes payable, as shown in the above table, will generally also be higher than the inventory cost due to the timing of the sale of a vehicle and payment of the related liability. Vehicle Floor Plan facilities are due on demand, but in the case of new vehicle inventories, are generally paid within several business days after the related vehicles are sold. Vehicle Floor Plan facilities are primarily collateralized by vehicle inventories and related receivables.

 

NOTE 5 – PROPERTY AND EQUIPMENT, NET

 

The following table summarizes property and equipment, net of accumulated depreciation and amortization as of June 30, 2021 and December 31, 2020.

 

		June 30, 2021				December 31, 2020
Equipment		$	4,186,122			$	4,231,451
Furniture and fixtures			19,516,679				19,307,497
Buildings			11,750,692				13,522,538
Vehicles			4,322,238				4,191,156
Leasehold improvements			10,307,053				10,296,570
Construction in progress			244,686				26,183
Total property and equipment			50,327,470				51,575,395
Less: Accumulated depreciation			27,390,715				27,870,165
Property and equipment, net		$	22,936,755			$	23,705,230

 

Depreciation and amortization expense for the three and six-month periods ending June 30, 2021, were $903,494 and $1,717,001, respectively. Depreciation and amortization expense for the three and six-month periods ending June 30, 2020, were $948,129 and $1,627,293, respectively.

 

NOTE 6 – GOODWILL AND INTANGIBLE ASSETS, NET

 

RideNow’s acquisitions have resulted in the recording of goodwill and other intangible assets. Goodwill is an asset representing operational synergies, franchise rights and future economic benefits arising from other assets acquired in a business combination that are not individually identified and separately recognized. Other intangible assets represent non-compete agreements entered into with sellers from the acquired businesses and are not significant to the condensed combined financial statements.

 

The changes in goodwill for the three months ended June 30, 2021 and the year ended December 31, 2020 are as follows:

 

		Goodwill
Balance at December 31, 2020		$	55,294,222
Acquisitions			-
Balance at June 30, 2021		$	55,294,222

 

 

NOTE 7 - LINE OF CREDIT

 

RideNow has a $19,000,000 revolving line of credit established at a bank. RideNow participates in the line of credit with certain affiliates. Interest is payable monthly at the lesser of the prime rate (3.25% and 3.25% at June 30, 2021 and December 31, 2020, respectively) or LIBOR plus 2.75% (2.90% and 2.98% at June 30, 2021 and December 31, 2020, respectively). The line of credit is secured by substantially all of the assets of the participating affiliates. The line of credit has been amended and renewed multiple times under similar terms since its inception and has a maturity date of January 15, 2022. The outstanding balance on the line of credit was $6,000,000- and $0 at June 30, 2021 and December 31, 2020, respectively. On July 28, 2021, RideNow paid off the remaining $6,000,000 on its revolving line of credit and terminated this credit facility with the bank. This move was done to facilitate the closing of the RumbleOn transaction scheduled for the third quarter 2021.

 

NOTE 8 – NOTES PAYABLE

 

The following consist of a note payable to a bank and other third-parties as of June 30, 2021 and December 31, 2020:

 

		June 30, 2021				December 31, 2020
Northern Trust Bank term loan agreement that requires monthly principal payments of approximately $190,500 and accrues interest at the one-month LIBOR plus 2.0%. This loan is guaranteed by the owners of CMG Powersports, Inc. and matures January 1, 2022.		$	4,571,429			$	5,714,286
Unsecured note payable to P&D Motorcycles in the original amount of $1,724,000 with an interest rate of 4% and note payable matures on July 1, 2022			1,113,211				1,248,740
PPP Loans dated April 6, 2020. Payments of principal and interest were deferred until August 6, 2021. Effective June 22, 2021, all PPP Loans were forgiven by the SBA.			-				19,039,229
Total notes payable		$	5,684,640				26,002,255
Less: Current portion		$	5,684,640				8,093,444
Long-term maturities of notes payable		$	-			$	17,908,811

 

The future maturities of long-term note payables to other as of June 30, 2021:

 

2021		$	5,684,641
2022			-
Total of long-term notes payable - other		$	5,684,641

 

Note Payable to Northern Trust Bank

 

RideNow is a collective borrower to a $16,000,000 term loan agreement with Northern Trust Bank held by CMG Powersports, Inc. The term loan agreement requires monthly principal payments of approximately $190,500 and accrues interest at the one-month LIBOR plus 2.0%. This loan is guaranteed by the owners of CMG Powersports, Inc. The term loan includes required covenants to be met. Management believes RideNow is in compliance with these covenants as of June 30, 2021 and December 31, 2020. For the three months ended June 30, 2021, and 2020 interest expense was $41,060 and $60,012, respectively and for the six months ended June 30, 2021, and 2020 interest expense was $92,356 and $124,751, respectively.

 

Note Payable to P&D Motorcycles

 

On June 28, 2017 TC Motorcycles, LLC “DBA–RideNow Powersports Jacksonville” (the buyer) entered into a promissory note with P&D Motorcycles (the seller) as part of an acquisition. The original principal sum was $1,724,000 accruing interest at 4% including 59 monthly payments of $17,454 with final balloon payment due July 1, 2022. For the three months ended June 30, 2021 and 2020 interest expense was $11,775 and $13,543 respectively, and for the six months ended June 30, 2021 and 2020 interest expense was $23,432 and $26,832 respectively.

 

 

PPP Loan

 

On April 6, 2020, RideNow entered into loan agreements and related promissory notes (the “SBA Loan Documents”) to receive U.S. Small Business Administration Loans (the “SBA Loans”) pursuant to the Paycheck Protection Program (the “PPP”) established under the CARES Act, in the aggregate amount of $19,039,229 (the “Loan Proceeds”). The Companies received the Loan Proceeds on April 6, 2020, and under the SBA Loan Documents, the SBA Loans had an initial maturity date of April 5, 2022 and an annual interest rate of 0.98%. As of June 22, 2021, all RideNow PPP loans were forgiven which extinguished this $19,039,229 loan and increased other income. Additionally, all accrued interest of $143,631 was removed and credited against interest expense. The SBA requires that businesses maintain all relevant information and keep good records for an audit or other review as there is a six-year (6) statute of limitations at play from the time that the loan is forgiven (or repaid in full).

 

NOTE 9 – RELATED PARTY TRANSACTIONS

 

Due from (to) related parties consist of the following balances as of June 30, 2021 and December 31, 2020.

 

		June 30, 2021				December 31, 2020
Accounts receivable-related parties		$	72,071,921			$	84,535,861
Notes receivable – related parties			1,026,605				1,264,425
Total balances due from related parties		$	73,098,526			$	85,800,286

 

		June 30, 2021				December 31, 2020
Accounts payable – related parties		$	40,130,446			$	27,615,211
Notes payable – related parties			1,159,322				7,411,322
Total balances due to related parties		$	41,289,768			$	35,026,533

 

Accounts Receivable and Payables

 

Receivables Due from Related Parties

 

		June 30, 2021				December 31, 2020
Cash sweep receivables		$	72,071,921			$	84,478,128
Other receivables due from related parties			-				57,733
Total receivables due from related parties		$	72,071,921			$	84,535,861

 

Cash Sweep Account Receivables/Payables

 

RideNow is a participant in a Cash Sweep Account arrangement with a bank and its affiliates. The Cash Sweep Account combines the cash balances of all the participating affiliates and invests excess cash on a daily basis. Interest is paid to each participant based on the average cash balance in the Cash Sweep account over the course of the year. Any participant that develops an overdraft cash balance is charged interest. For June 30, 2021 and December 31, 2020, the Cash Sweep Account was earning interest at 0.85% and 1.30%, respectively, and for overdraft balances, the interest charged was 3.25% and 3.00%, respectively.

 

  

		June 30, 2021				December 31, 2020
Cash Sweep Accounts:		$	72,071,919			$	84,478,128
Related party payable			(39,367,501	)			(27,956,598	)
Net Cash Sweep Account Balance		$	32,704,418			$	56,521,530

 

Payables Due to Related Parties

 

		June 30, 2021				December 31, 2020
Cash sweep payables		$	39,367,501			$	27,956,598
Other payables due to related parties			762,945				(341,387	)
Total payables due to related parties		$	40,130,446			$	27,615,211

 

Notes payable – Related Parties

 

The following table summarizes the notes payable to related parties as of June 30, 2021 and December 31, 2020:

 

		June 30, 2021				December 31, 2020
Various unsecured notes payable to Steele IV, LLLP, a related party through common ownership; monthly principal payments range from $10,000 to $20,000; interest accruing at rates ranging from LIBOR + 1.3% to LIBOR + 2.0%		$	-			$	3,000,000
Various unsecured notes payable to RideNow Management, LLLP, a related party through common ownership; monthly principal payments ranging from $7,000 to $13,500; interest accruing at rates ranging from LIBOR + 0.6% to LIBOR + 1.3%.			1,159,322				1,411,322
Various unsecured notes payable to Denex, LLLP, a related party through common ownership; monthly principal payments ranging from $10,000 to $20,000 interest accruing at rates ranging from LIBOR + 0.5% to LIBOR + 2.0%.			-				3,000,000
Total notes payable		$	1,159,322				7,411,322
Less: Current maturities		$	1,159,322				504,000
Long-term maturities due to related party		$	-			$	6,907,322

 

Related Party Leases

 

Included in the leases are leases for twenty-five (25) locations which are owned by the owners of RideNow or their affiliates. Lease expense charged to operations in connection with these related party leases was $10,126,669 and $8,715,266 for the six months ended June 30, 2021 and December 31, 2020, respectively.

 

Shared Services

 

RideNow receives administrative support from RideNow Management, LLLP and Coulter Management Group, LLLP, which are related parties due to common ownership. Total administrative services received from these entities and charged to operations were $160,000 and $210,000 for the six-months ended June 30, 2021 and 2020, respectively.

 

 

NOTE 10 – SUPPLEMENTAL CASH FLOW INFORMATION

 

The following table includes supplemental cash flow information, including noncash investing and financing activity for the six-months ended June 30,

 

		Six-Months Ended June 30,
		2021				2020
Cash paid for interest		$	1,165,501			$	2,465,259
Non-cash activities		$	-			$	-

 

NOTE 11 - RETIREMENT PLAN

 

RideNow maintains a 401(k) plan (the Plan) covering substantially all employees who are over the age of 21 and meet specified service requirements. Participants may voluntarily contribute to the Plan, not to exceed the maximum limits imposed by the Internal Revenue Service regulations. Contributions to the Plan are made by the participants to their individual accounts through payroll withholding. Additionally, RideNow provides a matching contribution of 25% up to the first 6% of participants’ annual earnings with a maximum of $2,000 annually. RideNow’s contribution to the Plan are made annually and were $563,624 for the three and six month periods ending June 30, 2021, respectively. RideNow’s contribution to the Plan was $495,297 for the three and six month periods ending June 30, 2020, respectively.

 

NOTE 12 – CONTINGENCIES

 

From time-to-time, RideNow is contingently liable in respect to lawsuits and claims incidental to the ordinary course of its operations. Management has determined that the outcome of any such matters will not have a material effect on the Combined Financial Statements. No provision has been made in the accompanying Condensed Combined Financial Statements for losses, if any, that might result from the ultimate outcome of such matters.

 

Coronavirus Pandemic (COVID-19)

 

Subsequent to year-end, the World Health Organization declared the spread of Coronavirus Disease (COVID-19) a worldwide pandemic. The COVID-19 pandemic is having significant effects on global markets, supply chains, businesses, and communities. Specific to RideNow, COVID-19 may impact various parts of its 2020 operations and financial results. Management believes RideNow is taking appropriate actions to mitigate the negative impact. However, the full impact of COVID-19 is unknown and cannot be reasonably estimated at June 30, 2021.

 

NOTE 13 – BUSINESS AND CREDIT CONCENTRATIONS

 

Financial instruments that potentially subject us to concentrations of credit risk consist principally of cash on deposit with financial institutions. At times, amounts invested with financial institutions exceed Federal Deposit Insurance Corporation insurance limits. Concentrations of credit risk with respect to receivables are limited primarily to receivables from powersports manufacturers or distributors which RideNow holds franchises, totaling approximately $5,300,553 and $6,624,129 at June 30, 2021 and December 31, 2020, respectively.

 

RideNow is subject to a concentration of risk in the event of financial distress or other adverse events related to any of the manufacturers whose franchised dealerships are included in RideNow’s brand portfolio. RideNow purchases new vehicle inventory from various powersports manufacturers at the prevailing prices available to all franchised dealerships. In addition, RideNow finances a substantial portion of its new vehicle inventory with manufacturer-affiliated finance companies. RideNow’s results of operations could be adversely affected by the manufacturers’ inability to supply RideNow dealerships with an adequate supply of new vehicle inventory and related floor plan financing. RideNow also has concentrations of risk related to the geographic markets in which RideNow dealerships operate. Changes in overall economic, retail powersports or regulatory environments in one or more of these markets could adversely impact the results of RideNow’s operations.

 

 

Concentrations of credit risk with respect to non-manufacturer trade receivables are limited due to the wide variety of customers and markets in which RideNow’s products are sold as well as their dispersion across many different geographic areas in the United States. Consequently, at June 30, 2021, RideNow does not consider itself to have any significant non-manufacturer concentrations of credit risk.

 

NOTE 14 – FINANCIAL INSTRUMENTS AND FAIR VALUE MEASUREMENTS

 

The fair value of a financial instrument represents the amount at which the instrument could be exchanged in a current transaction between willing parties, other than in a forced sale or liquidation. Fair value estimates are made at a specific point in time, based on relevant market information about the financial instrument. These estimates are subjective in nature and involve uncertainties and matters of judgment, and therefore cannot be determined with precision.

 

Accounting standards define fair value as the price that would be received from selling an asset or paid to transfer a liability in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants at the measurement date. Accounting standards establish a fair value hierarchy which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value and also establishes the following three levels of inputs that may be used to measure fair value:

 

Level 1 Quoted prices in active markets for identical assets or liabilities

 

Level 2 Observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities; quoted market prices in markets that are not active; or model-derived valuations or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.

 

Level 3 Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.

 

The following methods and assumptions were used by us in estimating fair value disclosures for financial instruments:

 

●

Cash and cash equivalents, receivables, other current assets, vehicle Floor Plan payable, accounts payable, other current liabilities, and variable rate debt: The amounts reported in the accompanying Condensed Combined Balance Sheets approximate fair value due to their short-term nature or the existence of variable interest rates that approximate prevailing market rates.

 

●

Fixed rate long-term debt: RideNow’s fixed rate long-term debt consists primarily of amounts outstanding under its senior unsecured notes. The amounts reported in the accompanying Combined Balance Sheets approximate fair value due to its senior unsecured notes using quoted prices for the identical liability (Level 1).

 

Nonfinancial assets such as goodwill, other intangible assets, and long-lived assets held and used are measured at fair value when there is an indicator of impairment and recorded at fair value only when impairment is recognized or for a business combination. The fair values less costs to sell of long-lived assets or disposal groups held for sale are assessed each reporting period they remain classified as held for sale. Subsequent changes in the held for sale long-lived asset’s or disposal group’s fair value less cost to sell (increase or decrease) are reported as an adjustment to its carrying amount, except that the adjusted carrying amount cannot exceed the carrying amount of the long-lived asset or disposal group at the time it was initially classified as held for sale.

 

NOTE 15 – SEGMENT INFORMATION

 

As of June 30, 2021, and December 31, 2020, RideNow had two operating segments: (1) Harley-Davidson motor sports dealerships and (2) Metric motor sports dealerships (representing all Non-Harley-Davidson motor sports dealerships). RideNow’s Harley-Davidson dealership segment is comprised of retail franchises that sell new and used motorcycles and related accessories, riding gear and apparel, replacement parts, equipment repair and maintenance services, and also arrange for the delivery of finance and insurance products through third party providers. RideNow’s Metric dealerships segment is comprised of retail franchises that sell new and used motorcycles (non-Harley-Davidson) and other motor sports equipment, including all-terrain vehicles, utility terrain vehicles, boats, personal watercraft, snowmobiles and scooters from manufacturers such as Honda, Yamaha, Kawasaki, Suzuki, Bombardier, Polaris, BMW, Ducati and Triumph. Additionally, dealerships in RideNow’s Metric segment sell related products and services, including repair and maintenance services and also arrange for the delivery of finance and insurance products through third party providers.

 

 

RideNow has determined that the operating segments also represent the reportable segments. The reportable segments identified above are the business activities of RideNow for which discrete financial information is available and for which operating results are regularly reviewed by the chief operating decision maker to assess operating performance and allocate resources. RideNow’s chief operating decision maker is comprised of its two owners, who are also RideNow’s (1) Chairman of the Board and (2) Chief Executive Officer.

 

The following tables provide reportable segment revenue, gross profit, Floor Plan interest expense, segment income and inventories:

 

		For the Three Months Ended June 30, 2021
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
Revenue		$	75,393,766			$	192,797,271			$	268,191,037
Gross Profit		$	24,418,507			$	60,612,121			$	85,031,472
Gross profit %			32.4	%			31.4	%			31.7	%
Floor Plan interest expense		$	(127,633	)		$	(246,227	)		$	(373,860	)
Segment income%			(0.2	%)			(0.1	%)			(0.1	%)
Segment income (1)		$	12,324,242			$	33,257,400			$	45,581,642
Segment income %			16.3	%			17.2	%			17.0	%
Inventories		$	30,770,221			$	70,443,904			$	101,214,125

 

		For the Three Months Ended June 30, 2020
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
Revenue		$	59,364,748			$	208,617,593			$	267,982,341
Gross Profit		$	17,887,949			$	56,244,290			$	74,132,239
Gross profit %			27.6	%			23.4	%			24.7	%
Floor Plan interest expense		$	(254,769	)		$	(292,237	)		$	(547,006	)
Segment income%			(0.4	%)			(0.1	%)			(0.2	%)
Segment income (1)		$	5,195,393			$	24,256,956			$	29,452,349
Segment income %			5.3	%			4.5	%			4.7	%
Inventories		$	32,812,988			$	105,366,484			$	138,179,472

 

 

		For the Six Months Ended June 30, 2021
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
Revenue		$	131,601,035			$	381,765,900			$	513,366,935
Gross Profit		$	41,695,435			$	117,932,399			$	159,629,346
Gross profit %			31.7	%			30.9	%			31.1	%
Floor Plan interest expense		$	(291,745	)		$	(574,030	)		$	(865,775	)
Segment income%			(0.2	%)			(0.2	%)			(0.2	%)
Segment income (1)		$	16,626,598			$	57,551,760			$	74,178,358
Segment income %			12.6	%			15.1	%			14.4	%
Inventories		$	30,770,221			$	70,443,904			$	101,214,125

 

		For the Six Months Ended June 30, 2020
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
Revenue		$	114,490,471			$	334,164,751			$	448,655,222
Gross Profit		$	32,171,634			$	88,433,303			$	120,604,937
Gross profit %			27.6	%			23.4	%			24.7	%
Floor Plan interest expense		$	(535,573	)		$	(1,258,759	)		$	(1,794,332	)
Segment income%			(0.5	%)			(0.4	%)			(0.4	%)
Segment income (1)		$	7,125,274			$	31,910,508			$	39,035,782
Segment income %			5.3	%			4.5	%			4.7	%
Inventories		$	32,812,988			$	105,366,484			$	138,179,472

 

(1)	Segment income represents income for each reportable segment and is defined as income from operations less Floor Plan interest expense, which is the measure by which management allocates resources to its segments.

 

The following is a reconciliation of the total of the reportable segments’ segment income to the combined net income:

 

		Three-Months Ended June 30,								Six-Months Ended June 30,
		2021				2020				2021				2020
Reportable segment income		$	45,581,642			$	29,452,349			$	74,178,358			$	39,035,782
Corporate operating income/expense			(11,799	)			63,633				(42,347	)			(85,352	)
Other interest expense			(7,153	)			(74,366	)			(61,076	)			(150,465	)
Interest income			7,742				20,306				15,830				53,283
Miscellaneous income			8,956,744				3,693,172				11,134,507				3,896,500
Combined net income		$	54,527,176			$	33,155,094			$	85,225,272			$	42,749,748

 

 

The following tables provide revenue by products and services:

 

		For the Three Months Ended June 30, 2021
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
New vehicles		$	25,433,262			$	117,298,398			$	142,731,660
Used vehicles			27,575,982				28,768,930				56,344,912
Service, parts and other			17,101,707				30,379,119				47,480,826
Finance and insurance income			5,282,815				16,350,824				21,633,639
		$	75,393,766			$	192,797,271			$	268,191,037

 

		For the Three Months Ended June 30, 2020
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
New vehicles		$	17,701,733			$	145,922,609			$	163,624,342
Used vehicles			23,906,858				17,645,683				41,552,541
Service, parts and other			13,489,909				27,044,461				40,534,370
Finance and insurance income			4,266,248				18,004,840				22,271,088
		$	59,364,748			$	208,617,593			$	267,982,341

 

		For the Six Months Ended June 30, 2021
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
New vehicles		$	46,818,053			$	239,139,935			$	285,957,988
Used vehicles			45,048,530				50,284,653				95,333,183
Service, parts and other			30,687,305				60,322,622				91,009,927
Finance and insurance income			9,047,147				32,018,690				41,065,837
		$	131,601,035			$	381,765,900			$	513,366,935

 

		For the Six Months Ended June 30, 2020
		Harley Davidson Dealerships				Metric Dealerships				Total Segments
New vehicles		$	34,476,136			$	220,894,725			$	255,370,861
Used vehicles			45,694,613				34,794,643				80,489,256
Service, parts and other			26,605,290				50,142,825				76,748,115
Finance and insurance income			7,714,432				28,332,558				36,046,990
		$	114,490,471			$	334,164,751			$	448,655,222

 

NOTE 16 – BUSINESS COMBINATION

 

RideNow Transaction

 

On March 12, 2021, RumbleOn, Inc. announced a definitive agreement to combine with RideNow Group to create the only omnichannel customer experience in powersports and the largest publicly traded powersports dealership platform (the “RideNow Transaction”). Under the terms of the definitive agreement, RumbleOn will combine with up to 46 entities operating under the RideNow brand for a total consideration of up to $575.4 million, consisting of $400.4 million of cash and approximately 5.8 million shares of RumbleOn Class B Common Stock. RumbleOn will finance the cash consideration through a combination of up to $280.0 million of debt and the remainder through the issuance of new equity. RumbleOn has entered into a commitment letter with Oaktree Capital Management, L.P. (“Oaktree”) to provide for the debt financing, subject to certain conditions (the “Oaktree Financing”). The number of shares to be issued to RideNow is subject to increase as described in the definitive agreement. The RideNow Transaction is subject to successful completion of the debt and equity financing, RumbleOn stockholder approval, manufacturer approval, other federal and state regulatory approvals, and other customary closing conditions as described in the definitive agreement. We expect to close the RideNow Transaction during the third quarter of 2021.

 

 

F-17

Exhibit 99.7

 

UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS

 

On March 12, 2021, RumbleOn, Inc. (“RumbleOn” or the “Company) entered into a Plan of Merger and Equity Purchase Agreement, as amended on June 17, 2021 and July 20, 2021 (the “RideNow Agreements”), to acquire RideNow Group and Affiliates, a non-legal entity, (“RideNow” or “The Group”). RideNow is a collection of franchised dealerships operating in the powersports industry. Collectively, the Group is referred to as the Acquired Companies in the Agreement. The Group is engaged in the sale of new and used motorcycles, all- terrain vehicles, personal watercraft, other powersports vehicles, and related products and services, including repair and maintenance services, parts and accessories, riding gear, and apparel. As of June 30, 2021, RideNow owned and operated 43 retail dealerships in the United States, predominately in the Sunbelt region. The core brands sold by RideNow are Harley-Davidson, Honda, Yamaha, Kawasaki, Suzuki, Bombardier, Polaris, BMW, Ducati and Triumph, which are sold through franchise dealer agreements.

 

The RideNow Agreement provides that the Company will acquire the Acquired Companies in exchange for (i) $400,400,000 in cash plus or minus any adjustments for net working capital and closing indebtedness, and (ii) shares of the Company’s Class B Common Stock having a value of $175,000,000 (the “Closing Payment Shares”), valued equally, on a per share basis, based upon the lowest value of (A) $30.00; (B) the VWAP of the Company’s Class B Common Stock for the twenty (20) trading days immediately preceding the closing of the RideNow Transaction (the “Closing”), and (C) the value on a per share basis paid for the Class B Common Stock or any shares underlying securities convertible into or exercisable for Class B Common Stock by any person which purchases Class B Common Stock or any shares underlying securities convertible into or exercisable for Class B Common Stock from the Company from the date of the RideNow Agreement until the Closing not including purchases of Class B Common Stock underlying currently outstanding options, warrants, convertible notes, or other derivative securities. Ten percent (10%) of the Closing Payment Shares will be escrowed at Closing and will be released pursuant to the terms of the RideNow Agreement. The Company will finance the cash consideration through a combination of approximately $280,000,000 of debt provided by the Initial Lender (as defined below) and through the issuance of new equity for the remainder thereof.

 

The following unaudited pro forma condensed combined financial statements are based on the Company’s historical consolidated financial statements and RideNow’s historical combined financial statements as adjusted to give effect to the Company’s acquisition of RideNow and the related financing transactions. The unaudited Pro Forma Condensed Combined Balance Sheet as of June 30, 2021, gives effect to these transactions as if they occurred on June 30, 2021. The unaudited Pro Forma Condensed Combined Statements of Operations for the six months ended June 30, 2021, and the twelve months ended December 31, 2020, give effect to these transactions as if they occurred on January 1, 2020.

 

The unaudited pro forma condensed combined financial statements should be read together with the Company’s audited historical financial statements, which are included in the Company’s most recent Annual Report on Form 10-K, and quarterly report on Form 10-Q, and RideNow’s audited historical financial statements, which were included in RumbleOn’s Form 8-K that was filed on April 8, 2021, and its quarterly financial statements, which is included in this Form 8-K being filed on August 4, 2021.

 

The unaudited pro forma combined financial information is provided for informational purpose only and is not intended to represent or be indicative of the consolidated results of operations or financial position that the Company would have reported had the RideNow transaction closed on the dates indicated and should not be taken as representative of our future consolidated results of operations or financial position.

 

The pro forma adjustments related to the RideNow Agreement are described in the notes to the unaudited pro forma combined financial information and principally include the following:

 

●

Pro forma adjustment to eliminate the RideNow assets, liabilities and owners’ equity not acquired.

 

●

Pro forma adjustment to record the equity and debt financing obtained in connection with the RideNow merger.

 

●

Proforma adjustment to record the merger of the Company and RideNow.

 

●

Proforma adjustments to record the estimated interest expense and other expenses resulting from the merger.

 

●

Proforma adjustment to record the estimated tax provision on the consolidated income before tax, as adjusted for the above pro forma adjustments.

 

The adjustments to fair value and the other estimates reflected in the accompanying unaudited pro forma condensed consolidated financial statements may be materially different from those reflected in the combined company’s consolidated financial statements subsequent to the merger. In addition, the unaudited pro forma condensed combined financial statements do not purport to project the future financial position or results of operations of the combined companies. Reclassifications and adjustments may be required if changes to RideNow’s financial presentation are needed to conform RideNow’s accounting policies to the accounting policies of RumbleOn.

 

These unaudited pro forma condensed combined financial statements do not give effect to any anticipated synergies, operating efficiencies or cost savings that may be associated with the RideNow Agreement. These financial statements also do not include any integration costs the companies may incur related to the Transactions as part of combining the operations of the companies.

 

 

RumbleOn Inc. and Subsidiaries

Pro Forma Condensed Combined Balance Sheet

as of June 30, 2021

(Unaudited)

 

		RumbleOn				Ride Now				Pro Forma Adjustments				Notes		Pro Forma Combined
ASSETS
Current assets:
Cash and cash equivalents		$	24,972,223			$	5,830,482			$	5,322,753			A		$	36,125,458
Restricted cash			3,049,056				-				-						3,049,056
Accounts receivable, net			26,955,051				98,250,159				(72,071,921	)		B			53,133,289
Inventory			19,675,990				101,214,125				(1,623,727	)					119,266,388
Other current assets			4,058,905				1,864,297				-						5,923,202
Total current assets			78,711,225				207,159,063				(68,372,895	)					217,497,393
Property and equipment - net			6,295,683				22,936,755				-						29,232,438
Right of use assets			5,007,605				73,921,130				-						78,928,735
Other indefinite lived intangible assets			-				-				194,531,319			C			194,531,319
Goodwill			26,886,563				55,284,223				325,716,991			C			407,887,777
Deferred finance charge			10,950,000				-				(10,950,000	)		G			0
Other assets			221,712				1,296,219				(1,026,605	)		D			491,326
Total assets		$	128,072,788			$	360,597,390			$	439,898,810					$	928,568,988
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable and accrued liabilities		$	12,678,577			$	83,133,280			$	(37,539,803	)		E		$	58,272,054
Lease liabilities-current portion			1,750,127				21,444,138				-						23,194,265
Notes payable-floor plan			21,857,234				44,753,947				-						66,611,181
Current portion of long-term debt			5,809,030				12,843,963				(8,516,667	)		F			10,136,326
Total current liabilities			42,094,968				162,175,328				(46,056,470	)					158,213,826
Long term liabilities:											-
Long-term debt			4,691,181				-				249,825,000			F			254,516,181
Warrant liability			13,174,216				-				(13,174,216	)		G			0
Convertible debt, net			28,079,484				-				-						28,079,484
Derivative liabilities			48,800				-				-						48,800
Lease liabilities- long-term portion			3,519,475				72,668,736				-						76,188,211
Other long-term liabilities			502,817				6,497,346				-						7,000,163
Total long-term liabilities			50,015,973				79,166,082				236,650,784						365,832,839
Total liabilities			92,110,941				241,341,410				190,594,314						524,046,665
Stockholders’ equity:
Class B Preferred stock			-				-				-						0
Class A stock			50				-				-						50
Class B Stock			3,343				-				10,154			G			13,497
Owners’ equity							119,255,980				(119,255,980	)		H			0
Additional paid in capital			148,180,750				-				383,889,833			G			532,070,583
Accumulated deficit			(112,222,296	)			-				(15,339,511	)		G			(127,561,807	)
Total stockholders’ equity			35,961,847				119,255,980				249,304,496						404,522,323
Total liabilities and stockholders’ equity		$	128,072,788			$	360,597,390			$	439,898,810					$	928,568,988

 

See Accompanying Notes to Pro Forma Financial Statements.

 

 

RumbleOn Inc. and Subsidiaries

Pro Forma Condensed Combined Statement of Operations

For the Six Months Ended June 30, 2021

(Unaudited)

 

		RumbleOn				Ride Now				Pro Forma Adjustments				Notes		Pro Forma Combined
Revenue:
Vehicle sales
Powersports		$	38,833,577			$	381,321,868				(25,275,968	)		I		$	394,879,477
Automotive			211,357,422				-				-						211,357,422
Transportation and vehicle logistics			22,418,633				-				-						22,418,633
Parts and other revenue			-				132,051,220				-						132,051,220
Total Revenue			272,609,632				513,373,088				(25,275,968	)					760,706,752
Cost of revenue
Powersports			28,897,883				305,578,943				(23,652,241	)		I			310,824,585
Automotive			194,977,530				-				-						194,977,530
Transportation and vehicle logistics			18,044,506				-				-						18,044,506
Other cost of sales and revenue			-				48,182,299				-						48,182,299
Total cost of revenue			241,919,919				353,761,242				(23,652,241	)					572,028,920
Gross profit			30,689,713				159,611,846				(1,623,727	)					188,677,832
Selling, general and administrative			31,514,495				91,682,136				2,126,250			J			125,322,881
Depreciation and amortization			1,231,066				1,717,001				-						2,948,067
Operating income (loss)			(2,055,848	)			66,212,709				(3,749,977	)					60,406,884
Interest expense			(3,529,345	)			(1,165,501	)			(15,175,066	)		K			(19,869,912	)
											-						-
Increase in derivative liability			(2,256,322	)			-				-						(2,256,322	)
Other income			-				20,160,562				-						20,160,562
Net income (loss) before provision for income taxes			(7,841,515	)			85,207,770				(18,925,043	)					58,441,212
Income tax expense			-				-				(14,610,303	)		L			(14,610,303	)
Net income (loss)		$	(7,841,515	)		$	85,207,770			$	(33,535,346	)				$	43,830,909
Weighted average number of common shares outstanding – basic			2,775,665														10,783,800
Net income (loss) per share – basic		$	(2.83	)												$	4.06
Weighted average number of common shares outstanding – basic and fully diluted			2,775,665														11,234,351
Net income (loss) per share – fully diluted		$	(2.83	)												$	3.90

 

See Accompanying Notes to Pro Forma Financial Statements.

 

 

RumbleOn Inc. and Subsidiaries

Pro Forma Condensed Combined Statement of Operations

For the Year Ended December 31, 2020

(Unaudited)

 

		RumbleOn				RideNow				Pro Forma Adjustments				Notes		Pro Forma Combined
Revenue:
Vehicle sales
Powersports		$	46,653,668			$	662,149,234				-					$	708,802,902
Automotive			337,084,959								-						337,084,959
Transportation and vehicle logistics			31,816,157								-						31,816,157
Parts and other revenue			872,459				236,741,164				-						237,613,623
Total Revenue			416,427,243				898,890,398				-						1,315,317,641
Cost of revenue
Powersports			40,060,571				551,652,098				-						591,712,669
Automotive			308,800,631				-				-						308,800,631
Transportation and vehicle logistics			24,200,229				-				-						24,200,229
Other cost of sales and revenue							91,017,529				-						91,017,529
Cost of revenue before impairment loss			373,061,431				642,669,627				-						1,015,731,058
Impairment loss on automotive inventory			11,738,413				-				-						11,738,413
Total cost of revenue			384,799,844				642,669,627				-						1,027,469,471
Gross profit			31,627,399				256,220,771				-						287,848,170
Selling, general and administrative			53,659,348				154,520,040			$	2,835,000			I			211,014,388
Insurance recovery proceeds			(5,615,268	)			-				-						(5,615,268	)
Depreciation and amortization			2,142,939				4,087,914				-						6,230,853
Operating income (loss)			(18,559,620	)			97,612,817			$	(835,000	)					76, 218,197
Interest expense			(6,638,325	)			(6,956,809	)			(30,673,844	)		J			(44,268,978	)
Other income			198,970				1,967,068				-						2,166,038
Net income (loss) before provision for income taxes		$	(24,998,975	)		$	92,623,076				(33,508,844	)					34,115,257
Income tax expense			-				-				(8,528,814	)		K			(8,528,814	)
Net income (loss)		$	(24,998,975	)		$	92,623,076			$	(42,037,658	)				$	25,586,443
Weighted average number of common shares outstanding – basic			2,184,441														10,231,415
Net income (loss) per share – basic		$	(11.44	)												$	2.54
Weighted average number of common shares outstanding – basic and fully diluted			2,184,441														10,371,409
Net income (loss) per share – fully diluted		$	(11.44	)												$	2.51

 

See Accompanying Notes to Pro Forma Financial Statements.

 

 

RumbleOn Inc. and Subsidiaries

Notes to Unaudited Pro Forma

Condensed Combined Financial Statements

 

Note 1 – Basis of Presentation

 

The audited historical consolidated financial statements have been adjusted in the pro forma condensed combined financial statements to give effect to pro forma events that are (1) directly attributable to the business combination, (2) factually supportable and (3) with respect to the pro forma condensed combined statements of operations, expected to have a continuing impact on the combined results following the business combination.

 

The business combination was accounted for under the acquisition method of accounting in accordance with ASC Topic 805, Business Combinations. As the acquirer for accounting purposes, the Company has estimated the fair value of RideNow’s assets acquired and liabilities assumed and conformed the accounting policies of RideNow to its own accounting policies.

 

The unaudited Pro Forma Condensed Combined Financial Statements are based on our historical consolidated financial statements and RideNow’s historical combined financial statements as adjusted to give effect to the Company’s acquisition of RideNow and the related financing transactions. The unaudited Pro Forma Condensed Combined Balance Sheet as of June 30, 2021, gives effect to these transactions as if they occurred on June 30, 2021. The Unaudited Pro Forma Condensed Combined Statements of Operations for the Year Ended December 31, 2020, and the Six Months Ended June 30, 2021, give effect to these transactions as if they occurred on January 1, 2020.

 

The allocation of the purchase price used in the unaudited pro forma financial statements is based upon a preliminary valuation by management. The final estimate of the fair values of the assets and liabilities will be determined with the assistance of a third-party valuation firm. The Company’s preliminary estimates and assumptions are subject to materially change upon the finalization of internal studies and third-party valuations of assets, including investments, property and equipment, intangible assets including goodwill, and certain liabilities.

 

The Unaudited Pro Forma Condensed Combined Financial Statements are provided for informational purpose only and are not necessarily indicative of what the combined company’s financial position and results of operations would have actually been had the Transactions been completed on the dates used to prepare these pro forma financial statements. The adjustments to fair value and the other estimates reflected in the accompanying unaudited pro forma condensed combined financial statements may be materially different from those reflected in the combined company’s consolidated financial statements subsequent to the Transactions. In addition, the unaudited pro forma condensed combined financial statements do not purport to project the future financial position or results of operations of the combined companies. Reclassifications and adjustments may be required if changes to RumbleOn’s financial presentation are needed to conform RumbleOn’s accounting policies to the accounting policies of the RideNow.

 

These unaudited pro forma condensed combined financial statements do not give effect to any anticipated synergies, operating efficiencies or cost savings that may be associated with the Transactions. These financial statements also do not include any integration costs the companies may incur related to the Transactions as part of combining the operations of the companies.

 

Reclassifications

 

Certain amounts in the Pro Forma Condensed Combined Statement of Operations for the six-months ended June 20, 2021, have been revised for consistency with the amounts shown in the unaudited Condensed Combined Statements of Operations for the six-months end June 30, 2021 and are included in this Form 8K.

 

Note 2 – Summary of Significant Accounting Policies

 

The unaudited pro forma condensed combined financial statements have been prepared in a manner consistent with the accounting policies adopted by the Company. The accounting policies followed for financial reporting on a pro forma basis are the same as those disclosed in the 2020 Annual Report on Form 10-K and for RideNow, the accounting policies followed for financial reporting on a pro forma basis are the same as those disclosed in the audited financial statements included in RumbleOn’s Form 8-K filed on April 8, 2021. The unaudited pro forma condensed combined financial statements do not assume any differences in accounting policies among the Company and RideNow. The Company is reviewing the accounting policies of RideNow to ensure conformity of such accounting policies to those of the Company and, as a result of that review, the Company may identify differences among the accounting policies of the two companies, that when confirmed, could have a material impact on the consolidated financial statements. However, at this time, the Company is not aware of any difference that would have a material impact on the unaudited pro forma condensed combined financial statements.

 

 

RumbleOn and RideNow have recorded leases in accordance with ASC 842. In the pro forma combined balance sheet these leases are reported as a single amount for short-term and long-term lease liabilities. The following table provides the segregation of these leases between operating leases and financing leases for the historical financial statements for RumbleOn and RideNow.

 

		As of June 30, 2021
		RumbleOn				RideNow
Lease liabilities – current portion
Operating leases		$	1,750,127			$	17,459,193
Financing leases							3,984,945
Total lease liabilities – current portion		$	1,750,127			$	21,444,138
Lease liabilities – long-term portion
Operating leases		$	3,519,475			$	58,345,599
Financing leases							14,323,137
Total lease liabilities – long-term portion		$	3,519,475			$	72,668,736

  

RideNow has notes receivable due from a related party, which is included in other assets in the pro forma combined balance sheet. In addition, RideNow has certain payables due to related parties that are included in the current and long-term portions of long-term debt in the pro forma combined balance sheet. The following table is provided to segregate these amounts before being combined in the accompanying Pro Forma Condensed Combined Balance Sheet as of June 30, 2021.

 

		As of June 30, 2021
		RumbleOn				RideNow
Other assets
Notes receivable – related party		$	-			$	1,026,605
Other non-current assets			221,712				269,614
Total other assets		$	221,712			$	1,296,219
Current portion of long-term debt
Payables to related parties		$				$	40,130,446
Notes payable-related parties			-				1,159,322
Notes payable – other			5,809,030				5,684,641
Total current portion of long-term debt		$	5,809,030			$	46,974,409
Long-term debt
Notes payable – related parties		$	-			$	-
Notes payable – PPP Loans			-				-
Notes payable – other			4,691,181				-
			4,691,181			$	-

 

 

RideNow Sweep Account

 

RideNow is a participant in a Cash Sweep Account arrangement with a bank and its affiliates. The Cash Sweep Account combines the cash balances of all the participating affiliates and invests excess cash on a daily basis. Interest is paid to each participant based on the average cash balance in the Cash Sweep account over the course of the year. Any participant that develops an overdraft cash balance is charged interest. For the year ended December 31, 2020 and the six months ended June 30, 2021, the Cash Sweep Account was earning interest at 0.85% and 1.3%, respectively, and for overdraft balances, the interest charged was 3.25% and 3.00%, respectively. In the unaudited financial statements as of June 30, 2021, members of the Group with positive sweep balances reported those balances as related party receivables, whereas members of the Group with negative sweep balances reported those balances as related party payables. The following table provides a summary of these balances as of June 30, 2021:

 

		As of June 30, 2021
Cash Sweep Accounts:
Related party receivable		$	72,071,921
Related party payable			(39,367,501	)
Net Cash Sweep Account Balance		$	32,704,420

 

For purposes of the Unaudited Condensed Combined Balance Sheet as of June 30,2021, the proforma adjustment below to record the preliminary allocation of the purchase price includes a reclassification of these related party balances to cash as a management contemplates those balances in the sweep account on the date of closing will be transferred to a Company account.

 

Note 3 – Financing Transactions

 

Senior Secured Term Loan

 

The Company is financing $280,000,000 of the cash consideration pursuant to the RideNow Agreement by the issuance of a new Senior Secured Term Loan. At the option of the Company, the interest rate on the new loan will be (a) Adjusted LIBOR (as defined in the Commitment Letter) plus 8.25%, of which (i) Adjusted LIBOR plus 7.25% shall be paid in cash and (ii) 1.00% shall be payable in kind or (b) ABR (as defined in the Commitment Letter) plus 7.25%, of which (i) ABR plus 6.25% shall be paid in cash and (ii) 1.00% shall be payable in kind. The Credit Facility shall mature on the fifth anniversary of the Closing date of the RideNow Transaction (subject to extension with the consent of only the extending lender). For purposes of these pro forma condensed combined financial statements, we have used an interest rate of 8.45%.

 

RMBL Transaction Equity Raise

 

To finance in part the cash consideration, the Company has committed to raise at least $135,000,000 in new equity. To estimate the fair value of this equity, a per share price of $40.50 was used which results in the issuance of 3,333,333 shares. This price represents the per share price of the Company’s stock as of the close of business on July 30, 2021.

 

Transaction Costs

 

For purposes of these pro forma financial statements, the Company has estimated that the total transaction costs for these financing transactions will be $19,225,000 for the debt financing and $9,450,000 for the equity raise. In addition, as discussed below, the Company has issued a warrant to Oaktree for which we have estimated a preliminary value of $22,100,000. Legal and other professional fees and expenses are estimated to be approximately $4,790,000, are non-recurring, and have not been recorded as a pro forma adjustment to the Pro Forma Condensed Combined Statement of Operations.

 

Warrant

 

In connection with the Commitment Letter, in lieu of a commitment fee, the Company has agreed to issue to Oaktree a warrant to purchase a number of shares of Class B Common Stock at an exercise price per share to be determined either at Closing or at termination of the Commitment Letter (“Warrant”). If issued at Closing, the Warrant will be for that number of shares equal to $40,000,000 divided by the lowest price per share at which equity is issued in connection with financing the RideNow Transaction, which price shall also be the exercise price. If issued in connection with a termination of the Commitment Letter, the Warrant will be issued to purchase that number of shares equal to five percent (5%) of the Company’s fully diluted market capitalization at the close of business on the day after a termination of the Commitment Letter is publicly announced divided by the weighted average price of the Company’s Class B Common Stock for the five days immediately preceding such date, which price shall also be the exercise price. The Warrant is immediately exercisable upon the Closing and expires eighteen (18) months after the Closing or termination of the Commitment Letter.

 

 

Using the stock price of $40.50 as of August 2, 2021, the number of warrants issued is 987,654. The preliminary fair value of the warrant has been estimated to be $22,100,000. As of March 12, 2021, the Company had estimated the fair value of the warrant to be $10,950,000 and recorded a deferred finance charge and warrant liability for this amount. This deferred charge has been reclassified and it is reflected in the accompanying pro forma combined financial statements as debt discount. The preliminary estimated fair value was determined using a Monte Carlo simulation based on level 1 and level 3 inputs. As of June 30, 2021, the Company increased the fair value of the warrant liability to $13,174,216. For purposes of these pro forma financial statements, the difference between the estimated fair value of $22,100,000 and the $13,174,216 of $8,925,784 has been recorded as an adjustment to accumulated deficit in the Condensed Combined Balance sheet as of June 30, 2021. No adjustment has been reflected in the Pro Forma Condensed Combined Statement of Operations for the six months ended June 30, 2021, because the transaction is not a recurring cost that would have a continuing impact on the combined results following the business combination.

 

Note 4 - Purchase Price Allocation

 

On March 12, 2021, the Company entered into a Plan of Merger and Equity Purchase Agreement, as amended on June 17, 2021 (the “RideNow Agreement”) to acquire RideNow Group and Affiliates, a non-legal entity, (“RideNow” or “The Group”). RideNow is a collection of franchised dealerships operating in the powersports industry. Collectively, the Group are referred to as the Acquired Companies in the Agreement. The Group is engaged in the sale of new and used motorcycles, all- terrain vehicles, personal watercraft, other powersports vehicles, and related products and services, including repair and maintenance services, parts and accessories, riding gear, and apparel. As of June 30, 2021, RideNow owned and operated more than 43 retail dealerships in the United States, predominately in the Sunbelt region. The core brands sold by RideNow are Harley-Davidson, Honda, Yamaha, Kawasaki, Suzuki, Bombardier, Polaris, BMW, Ducati and Triumph, which are sold through franchise dealer agreements.

 

The RideNow Agreement provides that the Company will acquire the Acquired Companies in exchange for (i) $400,400,000 in cash plus or minus any adjustments for net working capital and closing indebtedness, and (ii) shares of the Company’s Class B Common Stock having a value of $175,000,000 (the “Closing Payment Shares”), valued equally, on a per share basis, based upon the lowest value of (A) $30.00; (B) the VWAP of the Company’s Class B Common Stock for the twenty (20) trading days immediately preceding the Closing, and (C) the value on a per share basis paid for the Class B Common Stock or any shares underlying securities convertible into or exercisable for Class B Common Stock by any person which purchases Class B Common Stock or any shares underlying securities convertible into or exercisable for Class B Common Stock from the Company from the date of the RideNow Agreement until the Closing not including purchases of Class B Common Stock underlying currently outstanding options, warrants, convertible notes, or other derivative securities. Ten percent (10%) of the Closing Payment Shares will be escrowed at Closing and will be released pursuant to the terms of the RideNow Agreement. The Company will finance the cash consideration through a combination of approximately $280,000,000 of debt provided by the Initial Lender (as defined below) and through the issuance of new equity for the remainder thereof.

 

 

The following table summarizes the preliminary allocation of the purchase price based on the estimated fair value of the acquired assets and assumed liabilities as of June 30, 2021:

 

Purchase price consideration
Cash		$	400,400,000
Class B stock (5,833,333 x $40.50 per share)			236,249,987
Total purchase price consideration		$	636,649,987
Estimated fair value of assets:
Cash		$	38,534,902
Contracts in transit			10,149,513
Accounts receivable			16,028,725
Inventory			101,214,125
Prepaid expenses			1,864,297
Right-of-use assets			73,921,130
Property & equipment			22,936,755
Other Assets			269,614
			264,919,061
Estimated fair value of liabilities assumed:
Accounts payable, accrued expenses and other current liabilities			45,593,477
Notes payable - floor plan			44,753,947
Lease liabilities			94,112,874
Long-term debt			6,843,963
Other long-term liabilities			6,497,346
			197,801,607
Net tangible assets			61,117,454
Intangible assets			194,531,319
Goodwill			381,001,214
Total consideration		$	636,649,987

 

This preliminary purchase price allocation has been used to prepare pro forma adjustments in the pro forma balance sheet and statement of operations. The final purchase price allocation will be determined when the Company has completed the detailed valuations and necessary calculations. For purposes of the pro forma condensed combined financial statements, for inventory, property and equipment, leases and other assets and liabilities the Company used the carrying value as reported its historical financial statement as reported in its Form 10-Q as of June 30, 2021, and as reported in the historical Combined Financial Statements for RideNow as of June 30, 2021, that have been included in this report. The final allocation could differ materially from the preliminary allocation used in the pro forma adjustments. The final allocation may include (1) changes in fair values of property, plant and equipment, (2) changes in allocations to intangible assets such as trade names, technology, franchise rights and customer relationships as well as goodwill and (3) other changes to assets and liabilities.

 

In accordance with the RideNow Agreement, as discussed above, the purchase price includes a $400,400,000 in cash plus $175,000,000 in stock. For purposes of these pro forma combined financial statements, the number of shares to be issued was determined based on a price of $30.00 per share as required under the RideNow Agreement which results in the issuance of 5,833,333 shares of the Company’s Class B Stock. The fair value of the shares issued was determined based on a per share price of $40.50, which is the price of the RumbleOn stock as of the close of business on June 21, 2021. The following table reflects the impact of a 10% increase or decrease in the per share price on the estimated fair value of the purchase price and goodwill:

 

		Purchase Price				Estimate Goodwill
s presented in the pro forma combined results		$	636,649,987			$	381,001,214
10% increase in common stock price		$	660,274,985			$	404,626,212
10% decrease in common stock price		$	613,024,988			$	357,376,215

 

 

Note 5 - Pro Forma Adjustments

 

The pro forma adjustments are based on our preliminary estimates and assumptions that are subject to change. The following adjustments have been reflected in the unaudited pro forma condensed combined financial information:

 

A.

This adjustment records the net increase in cash resulting from the merger as follows:

 

Net proceeds from issuance of debt		$	260,775,000
Net proceeds from issuance of Class B stock			125,550,000
Total net proceeds from financing transactions			386,325,000
Less cash consideration paid to Sellers			(400,400,000	)
Net cash received from sweep account on the Closing Date(1)			26,704,420
Repayment of Bridge Loan (including accrued interest)			(2,516,667	)
Legal and other professional fees and expenses			(4,790,000	)
Net increase in cash		$	5,322,753

 

(1)

Amount is positive

 

B.

This adjustment records the reclassification of the positive cash balances from the sweep account.

 

C.

As part of the preliminary valuation analysis, the Company identified Franchise Rights as a separately identifiable intangible asset. The fair value of this intangible asset $194,531,319 was determined primarily using the “income approach,” which requires a forecast of the expected future cash flows. Since all the information required to perform a detail valuation analysis of RideNow’s intangible assets could not be obtained as of the date of this filing, for purposes of these unaudited pro forma condensed combined financial statements, the Company used certain assumptions based on publicly available transactions data for the industry. Based on our research and discussions with RideNow management we have concluded that the Franchise Rights intangible asset has an indefinite life and therefore we have not made any adjustment in the pro forma condensed combined statement of operations for amortization.

 

In addition, this adjustment reflects the recognition of goodwill of $381,001,214, less the removal of $55,294,223 of goodwill reflected on the historical balance sheet of RideNow as of June 30, 2021.

 

D.

This adjustment reflects the elimination of notes receivable related party that are expected to be paid off prior to closing.

 

E.

This adjustment includes the payable for the Net Working Capital adjustment of $1,827,698, less the reclassification of the negative cash balances of $39,367,501 from the sweep account.

 

F.

As described in Note 3 above, this adjustment records the elimination of the current portion of long-term debt of $6,000,000 and records the new debt, less debt discount and less elimination long-term debt as follows:

 

Balance of new Senior Term Loan		$	280,000,000
Less debt discount and deferred financing fees			(30,175,000	)
Net adjustment to long-term debt		$	249,825,000

 

G.

This adjustment records the net proceeds received from the equity raised to finance payment of the cash consideration of $125,550,000 plus this issuance of warrants with a fair value of $22,100,000 plus the issuance of 5,833,333 shares of Class B Common Stock to the sellers as the equity portion of the purchase consideration, valued at $236,249,987 based on a per share price of $40.50 which was the per share price of the Company’s stock as of the close of business on August 2, 2021. This entry also records the reclassification of the deferred finance charge on the balance sheet of RumbleOn to Debt Discount and reclassifies the warrant liability to equity.  As discussed in Note 3 above, the Company has estimated transaction costs for legal and other professional fees and expenses of $4,790,000.  These costs have not been recorded as a pro forma adjustment to the in the Pro Forma Condensed Combined Statements of Operations.  However, they have been reflected as an adjustment to the accumulated deficit in the Pro Forma Condensed Combined Balance Sheet. In addition, an adjustment has been to the accumulated deficit for the change in the fair value of the warrant as described in Note 3 above for 8,925,995.

 

 

H.

This adjustment eliminates RideNow’s Owners’ Equity as reported in the audited historical financial statements.

 

I.

This adjustment eliminates the intercompany sales for vehicles sold to RideNow by the Company.

 

J.

Pursuant to the RideNow Agreement, the Company is adopting an Equity Incentive Plan and as disclosed in a Schedule to the RideNow Agreement is rewarding 278,334 of restrictive stock units (RSUs) to employees of RideNow. Based on the stock price of $40.50 per share, these units have a fair value of $11,272,527. The pro forma adjustment recognizes 20% ($2,254,505) of these awards being recognized as share-based compensation in the Unaudited Condensed Combined Statement of Operations for the year ended December 31, 2020, and one half of the 30% vesting ($1,690,879) during the six months ended June 30, 2021. This estimate used the same vesting schedule used by the Company as disclosed in its financial statements for the six months ended June 30, 2021, as reported on Form 10-Q.

 

K.

This pro forma adjustment records the estimated interest expense as follows:

 

		6-Months Ended June 30, 2021				12-Months Ended December 31, 2020
Contract interest on the new Senior Term Loan		$	12,296,889			$	24,591,031
Amortization of debt discount (Note 1)			2,518,177				5,362,813
Amortization of deferred financing costs (Note 1)			360,000				720,000
Total interest expense adjustment		$	15,175,066			$	30,673,844

 

Note (1) Amortization of debt discounts is assumed using an effective interest method using an interest rate of 10.5%. Deferred finance costs are amortized on a straight-line basis over the term of the loan (five years).

 

L.

This pro forma adjustment reflects the estimated tax provision that may be required based on an estimated blended federal and state statutory tax rate of 25%.

 

		6-Months Ended June 30, 2021				12-Months Ended December 31, 2021
Income before tax		$	58,441,212			$	34,115,257
Effective tax rate			25	%			25	%
Provision for taxes		$	14,610,303			$	8,528,814

 

Note 6 – Combined Adjusted EBITDA Before Pro Forma Adjustments

 

Adjusted EBITDA is a non-GAAP financial measure and should not be considered as an alternative to operating income or net income as a measure of operating performance or cash flows or as a measure of liquidity. Non-GAAP financial measures are not necessarily calculated the same way by different companies and should not be considered a substitute for or superior to U.S. GAAP.

 

Combined Adjusted EBITDA Before Pro Forma Adjustments is defined as net income adjusted to add back interest expense including debt extinguishment and depreciation and amortization, and certain charges and expenses, such as goodwill impairment, impairment loss on automotive inventory, impairment loss on plant & equipment, insurance recovery proceeds, non-cash stock-based compensation, change in derivative liability, litigation expenses, severance, new business development and other non-recurring costs, as these charges and expenses are not considered a part of our core business operations and are not an indicator of ongoing, future company performance.

 

 

Adjusted EBITDA is one of the primary metrics used by management to evaluate the financial performance of our business. We present Adjusted EBITDA because we believe it is frequently used by analysts, investors and other interested parties to evaluate companies in our industry. Further, we believe it is helpful in highlighting trends in our operating results, because it excludes, among other things, certain results of decisions that are outside the control of management, while other measures can differ significantly depending on long-term strategic decisions regarding capital structure and capital investments.

 

The following tables reconcile Combined Adjusted EBITDA Before Pro Forma Adjustments to net income based on the Company’s historical financial statements for the six months ended June 30, 2021, and the year ended December 31, 2020 and RideNow’s historical financial statements for the six months ended June, 2021 and the year ended December 31, 2020.

 

		For the Six Months Ended June 30, 2021												For the Twelve Months Ended December 31, 2020
		RumbleOn				RideNow				Combined (Before Pro Forma Adjustments)				RumbleOn				RideNow				Combined (Before Pro Forma Adjustments)
Net income (loss)		$	(7,841,515	)		$	85,207,770			$	77,366,255			$	(24,998,975	)		$	92,623,076			$	67,624,101
Add back:
Interest expense (including debt extinguishment)			3,529,345				1,165,501				4,694,846				6,450,161				6,956,809				13,406,970
Depreciation and amortization			1,231,066				1,717,001				2,948,067				2,142,939				4,087,914				6,230,853
Interest income and miscellaneous income			-				(1,121,332	)			(1,121,332	)			-				(1,967,068	)			(1,967,068	)
Increase (decrease) in derivative liability			2,256,322								2,256,322				(10,806	)			-				(10,806	)
EBITDA			(824,762	)			86,968,940				86,144,158				(16,416,681	)			101,700,731				85,284,050
Adjustments
Impairment loss on automotive inventory			-				-				-				11,738,413				-				11,738,413
Impairment loss on plant & equipment			-				-				-				177,626				-				177,626
Insurance recovery proceeds			-				-				-				(5,615,268	)			-				(5,615,268	)
Non-cash stock-based compensation			1,727,491				-				1,727,491				2,978,236				-				2,978,236
Acquisition costs associated with the RideNow Agreement			1,956,701				-				1,956,701				-				-				-
Litigation expenses			169,648				-				169,648				1,295,717				-				1,295,717
Other Non-recurring costs			32,985				-				32,985				51,387				-				51,387
PPP loan forgiveness			-				(19,039,229	)			(19,039,229	)			-				-				-
Adjusted EBITDA		$	3,062,043			$	67,929,711			$	70,991,754			$	(5,790,570	)		$	101,700,731			$	95,910,161

 

 

PF-12