Exhibit 10.7
Execution Version
THIS SECURED SELLER NOTE IS SUBJECT TO CERTAIN SET-OFF RIGHTS AS SET FORTH BELOW AND IN THE MERGER AGREEMENT REFERRED TO BELOW.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF BORROWER CONSENT OR REGISTRATION OF THIS SECURITY UNDER THE ACT OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
SECURED SELLER NOTE
$111,828,150.09 | March 5, 2024 |
FOR VALUE RECEIVED, and subject to the terms and conditions set forth herein, Atlas Sand Company, LLC, a Delaware limited liability company (the “Borrower”), hereby unconditionally promises to pay to the Agent, on behalf of the Persons listed on Schedule 1 hereto and their registered assigns (collectively, the “Noteholders,” and together with the Borrower, the Guarantor (as defined below), and the Agent (as defined below) the “Parties”), the aggregate principal amount of ONE HUNDRED ELEVEN MILLION EIGHT HUNDRED TWENTY-EIGHT THOUSAND ONE HUNDRED FIFTY DOLLARS AND 9/100 CENTS ($111,828,150.09) (as (w) reduced pursuant to the terms of Section 3 (including as a result of any payment, prepayment or setoff), (x) increased pursuant to one or more elections by the Borrower to pay PIK Interest in accordance with Section 5.1, (y) increased by any Refund Amount in accordance with Section 3.3(c), or (z) increased or decreased by Specified Principal Adjustments in accordance with Section 3.3(d), the “Principal”), together with all accrued interest thereon as provided in this Secured Seller Note (this “Note”). This Note constitutes the Deferred Cash Consideration Note referenced in the Merger Agreement (as defined below).
“Agent” means U.S. Bank Trust Company, National Association, in its capacity as administrative agent and collateral agent for the Noteholders under the Note Documents.
“Applicable Portion” means, with respect to any Indemnification Principal Reduction, an amount of Principal equal to the applicable Final Loss Amount.
“Applicable Rate” means (i) with respect to the payment of Cash Interest, 5.0% per annum, and (ii) with respect to the payment of PIK Interest, 7.0% per annum.
“Benefit Plan Investor” means (a) any “employee benefit plan” (as defined in Section 3(3) of Title I of ERISA) that is subject to the fiduciary responsibility provisions of Title I of ERISA, (b) any “plan” as defined in Section 4975(e) of the Code that is subject to Section 4975 of the Code, (c) any entity whose underlying assets are treated as “plan assets” (for purposes of ERISA or Section 4975 of the Code) by reason of any such employee benefit plan’s or plan’s investment in the entity or (d) a governmental, church, non-U.S. or other plan that is subject to Similar Law.
“Borrower” has the meaning set forth in the introductory paragraph.
“Cash Interest” has the meaning attributed to such term in Section 5.1.
“Casualty Event” means any loss, casualty or other insured damage to, or any nationalization, taking under power of eminent domain or by condemnation or similar proceeding of, any Collateral.
“Claimed Amount” has the meaning attributed to such term in Section 3.3(b).
“Closing Date” has the meaning attributed to such term in the Merger Agreement.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means the “Trust Property” as defined in the Mortgage.
“Company” means Hi-Crush Inc., a Delaware corporation.
“Controlling Person” means a person (other than a Benefit Plan Investor) that has discretionary authority or control with respect to the assets of the Borrower or that provides investment advice for a fee (direct or indirect) with respect to such assets (or any “affiliate” of such a person as defined in the Plan Asset Regulations (other than any Benefit Plan Investor)).
“Debt” means all (a) indebtedness for borrowed money; (b) obligations for the deferred purchase price of property or services, except current trade payables arising in the ordinary course of business; (c) obligations evidenced by notes, bonds, debentures, or other similar instruments; (d) obligations as lessee under capital leases or finance leases; (e) obligations in respect of any interest rate swaps, currency exchange agreements, commodity swaps, caps, collar agreements, or similar arrangements entered into by the Borrower providing for protection against fluctuations in interest rates, currency exchange rates, or commodity prices, or the exchange of nominal interest obligations, either generally or under specific contingencies; (f) obligations under acceptance facilities and letters of credit; (g) guaranties, endorsements (other than for collection or deposit in the ordinary course of business), and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in any Person, or otherwise to assure a creditor against loss, in each case, in respect of indebtedness set out in clauses (a) through (f) of a Person; and (h) indebtedness set out in clauses (a) through (g) of any Person secured by any Lien on any asset of the other Person.
“Default” means the occurrence of any event or the existence of any circumstances that would, with the giving of notice, lapse of time, or both, unless cured or waived during such time, become an Event of Default.
“Default Rate” means the Applicable Rate for Cash Interest plus 2% per annum.
“Disposition” means the sale, transfer, license, lease or other disposition of any Collateral.
“Dispute Period” means the period commencing on the date a Purchaser Indemnitee that is any of Parent, Borrower, an Acquired Company or any of their respective Affiliates has made an Indemnification Claim and ending on the earlier of (a) the date a Final Determination is made with respect to such Indemnification Claim or (b) the date on which the applicable Indemnifying Parties otherwise satisfy such Indemnification Claim in accordance with Article XI of the Merger Agreement.
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“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such Equity Interest.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute.
“ERISA Permitted Investor” means an (A) an insurance company (i) purchasing an interest in this Note with funds from a general account less than 15% of whose assets constitute, and less than 15% of whose assets will constitute for so long as such beneficial owner holds an interest in such securities, “plan assets” for purposes of the Plan Asset Regulations, (ii) whose acquisition, holding and disposition of its interest in this Note will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code and (iii) that is not a Controlling Person or (B) a governmental, church, non-U.S. or other plan, whose acquisition, holding and disposition of an interest in this Note does not and will not constitute or give rise to a non-exempt violation of any Similar Law and will not cause the Borrower to be subject to Similar Law.
“Event of Default” has the meaning set forth in Section 11.
“Excepted Liens” means (a) immaterial title deficiencies and easements, restrictions, servitudes, permits, conditions, covenants, exceptions, reservations, zoning and land use requirements in any Collateral for the purpose of roads, pipelines, transmission lines, transportation lines, distribution lines and other means of ingress and egress for the removal of gas, oil, coal, other minerals or sand or timber, and other like and/or usual and customary purposes, or for the joint or common use of real estate, rights of way, facilities and equipment, and leases or subleases of real property and any interest or title of a lessee or sublessee under any such lease or sublease, in each case, which in the aggregate do not materially impair the use of such Collateral for the purposes of which such Collateral is held by the Borrower or any of the other Note Parties or materially impair the value of such Collateral subject thereto and (b) judgment and attachment Liens not giving rise to an Event of Default.
“Existing ABL Credit Agreement” means that certain Loan, Security and Guaranty Agreement, dated as of February 22, 2023, by and among Atlas Sand Company, LLC, a Delaware limited liability company (“Atlas Sand Company”), the guarantors from time to time party thereto, the lenders from time to time party thereto and Bank of America, N.A., as administrative agent, as amended, restated, supplemented or otherwise modified from time to time in a manner permitted pursuant to the Intercreditor Agreement.
“Existing Credit Agreements” means, collectively, the Existing ABL Credit Agreement and the Existing Term Loan Credit Agreement.
“Existing Term Loan Credit Agreement” means that certain Credit Agreement dated as of July 31, 2023, among Atlas Sand Company, the guarantors from time to time party thereto, the lenders from time to time party thereto, and Stonebriar Commercial Finance LLC, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time in a manner permitted pursuant to the Intercreditor Agreement.
“Guarantor” means Hi-Crush Permian Sand LLC, a Delaware limited liability company.
“Indemnification Claim” a claim for indemnification pursuant to Section 11.2(a) or 11.2(b) of the Merger Agreement.
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“Indemnification Principal Reduction” has the meaning attributed to such term in Section 3.3(a).
“Intercreditor Agreement” means the Intercreditor Agreement dated as of the date hereof, among the Agent, the agent under each Existing Credit Agreement and agreed and acknowledged by the Note Parties, as amended or otherwise modified from time to time in accordance with the terms thereof.
“Interest Payment Date” has the meaning attributed to such term in Section 5.1.
“Legal Expenses Limitation” with respect to any obligation in any Note Document of a Note Party to pay or reimburse any legal fees or expenses of the Agent and the Noteholders, that such obligation shall be limited to the documented out-of-pocket fees and expenses of (a) one primary counsel and one local counsel for each relevant jurisdiction as may be necessary in the reasonable judgment of Agent, and one specialty counsel acting in each reasonably necessary specialty area as determined in the reasonable judgment of Agent and (b) one primary counsel and one local counsel for all Noteholders (taken as a whole) for each relevant jurisdiction as may be necessary in the reasonable judgment of the Noteholders, and one specialty counsel for all Noteholders acting in each reasonably necessary specialty area as determined in the reasonable judgment of the Noteholders.
“Lien” means any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever.
“Material Adverse Effect” means a material adverse change in, or material adverse effect on (a) the business, operations, property or financial condition of Borrower and the Guarantor taken as a whole, (b) the ability of (i) the Borrower to perform its payment obligations under any Note Document or (ii) the Note Parties, taken as a whole, to perform any of their material obligations under any Note Document, (c) the validity or enforceability of any Note Document or (d) the rights and remedies of or benefits available to the Agent and the Noteholders, taken as a whole, under this Note or the other Note Documents.
“Maturity Date” means the earlier of (a) January 31, 2026 and (b) the date on which all amounts under this Note shall become due and payable pursuant to Section 12.
“Merger Agreement” means that certain Agreement and Plan of Merger dated as of February 26, 2024, by and among the Borrower, Atlas Energy Solutions Inc., a Delaware corporation, Wyatt Merger Sub 1 Inc., a Delaware corporation, Wyatt Merger Sub 2, LLC, a Delaware limited liability company, the Company, HC Minerals Inc., a Delaware corporation, and the other parties named therein.
“Mortgage” means that certain Deed of Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment of Rents and Leases dated as of even date hereof granted by Guarantor, as grantor, for the benefit of the Agent, as beneficiary (as amended, restated, or otherwise modified from time to time).
“Net Cash Proceeds” means 100% of the cash proceeds actually received by the Note Parties from any Casualty Event or Disposition of Collateral, net of (a) reasonable and customary transaction expenses (including broker’s fees or commissions, legal fees, accounting fees, investment banking fees and other professional fees, transfer and similar taxes and the Borrower’s good faith estimate of taxes paid or payable in connection with such Disposition or Casualty Event), (b) amounts set aside as a reserve, in accordance with, and as required by, GAAP, including pursuant to any escrow arrangement, against any
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liabilities under any indemnification obligations associated with such Disposition and (c) in the case of insurance settlements, the amount of any deductibles or co-payments paid or payable by the Note Parties.
“Note” has the meaning set forth in the introductory paragraph.
“Note Documents” means (a) this Note (including all certificates and requests delivered in connection this Note and all exhibits and schedules to this Note), (b) the Mortgage, (c) the Intercreditor Agreement, (d) the Parent Guaranty, and (e) all renewals, extensions, amendments, modifications, supplements, restatements, and replacements of, or substitutions for, any of the foregoing.
“Non-Permitted Holder” means any Person that (a) is not eligible or qualified to be a Noteholder at the time it acquires an interest in this Note or (b) made representations or was deemed to have made representations for purposes of ERISA, Section 4975 of the Code or Similar Laws in any agreement, representation letter or assignment or transfer certificate, or by virtue of deemed representations, that are or become untrue.
“Note Parties” means Borrower and Guarantor. For the avoidance of doubt, Parent Guarantor shall not be a Note Party.
“Noteholders” has the meaning set forth in the introductory paragraph.
“Obligations” means all unpaid Principal and accrued and unpaid interest thereon, accrued and unpaid expenses (to the extent reimbursable under any Note Document) and indemnities (including interest and fees accruing during the pendency of any insolvency proceeding, regardless of whether allowed or allowable in such proceeding), and all other obligations and liabilities of any kind, in each case of any of the Note Parties, individually or collectively, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, arising by contract, operation of law or otherwise, now existing or hereafter arising or incurred, in each case, under this Note or any other Note Document.
“Parent Guarantor” means Atlas Energy Solutions Inc., a Delaware corporation.
“Parent Guaranty” means that certain Parent Guaranty Agreement, dated as of the date hereof, executed by Parent Guarantor in favor of the Agent for the benefit of the Noteholders, pursuant to which the Parent Guarantor unconditionally guarantees on an unsecured basis, the payment of the Obligations, as such agreement may be amended or modified from time to time.
“Parties” has the meaning set forth in the introductory paragraph.
“Plan Asset Regulations” means the regulations promulgated at 29 C.F.R. §2510.3-101, as modified by Section 3(42) of ERISA.
“Permitted Liens” means:
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“PIK Interest” has the meaning attributed to such term in Section 5.1.
“Principal” has the meaning set forth in the introductory paragraph.
“Qualified Affiliate” means any Affiliate of a Noteholder that, as of the date of any assignment to such Affiliate, all representations set forth in clauses (a) through (c) in Section 10 with respect to such Affiliate are true and correct.
“Recouped Interest Amount” means, with respect to any Indemnification Claim that results in an Indemnification Principal Reduction, an amount equal to (a) the aggregate amount of interest paid by the Borrower (whether as Cash Interest or PIK Interest) with respect to the Applicable Portion from the Closing Date to the date of the applicable Indemnification Principal Reduction minus (b) the amount of interest withheld and not paid by the Borrower with respect to such Indemnification Claim in accordance with Section 3.3(b).
“Refund Amount” means the amount of any Tax refund or credit received by Parent or its Affiliates to which RemainCo or the Stockholders are entitled while this Note remains outstanding, as determined in accordance with Section 12.1(b)(iv) of the Merger Agreement.
“Register” has the meaning attributed to such term in Section 13.6.
“Required Noteholders” means two or more unaffiliated Noteholders holding in the aggregate at least 50% of the then outstanding Principal. The Agent shall have no obligation to determine
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whether any Noteholders are unaffiliated and is entitled to rely solely upon any certificate from any Noteholder as to whether such Noteholders constitute Required Noteholders.
“Similar Law” means any federal, state or local law or regulations that are substantially similar to Section 406 of ERISA or Section 4975 of the Code.
“Solvent” means, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities as they mature in the normal course of business, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s assets would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage and (d) the present fair salable value of the assets of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed as the amount which, 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.
“Specified Principal Adjustment” has the meaning attributed to such term in Section 3.3(d).
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of Texas or, when the laws of any other State govern the method or manner of the perfection or enforcement of any security interest in any of the Collateral, the Uniform Commercial Code as in effect from time to time in such State.
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Atlas Sand Company, LLC
5918 West Courtyard Drive, Suite 500
Austin, Texas 78730
Attention: John Turner
Email: [***]
U.S. Bank Trust Company, National Association
214 North Tryon Street, 26th Floor
Charlotte, NC 28202
Attention: Agency Services/James A. Hanley
Email: [***]; [***]
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[signature page follows]
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IN WITNESS WHEREOF, each Note Party has executed this Note as of the date first written above.
BORROWER: | ||
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ATLAS SAND COMPANY, LLC, | ||
a Delaware limited liability company | ||
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By |
| /s/ John Turner |
Name: |
| John Turner |
Title: |
| President and Chief Financial Officer |
GUARANTOR: | ||
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HI-CRUSH PERMIAN SAND LLC, | ||
a Delaware limited liability company | ||
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By |
| /s/ John Turner |
Name: |
| John Turner |
Title: |
| President and Chief Financial Officer |
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Signature Page to Secured Seller Note
By its acceptance of this Note, the Agent and each Noteholder acknowledges and agrees to be bound by the provisions hereof, as applicable.
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, | |||
as Agent |
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By |
| /s/ James A. Hanley |
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Name: |
| James A. Hanley |
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Title: |
| Senior Vice President |
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Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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Clearlake Capital Partners V Finance, L.P. | ||
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By |
| /s/ Fred Ebrahemi |
Name: |
| Fred Ebrahemi |
Title: |
| General Counsel |
Signature Page to Secured Seller Note
WHITEBOX RELATIVE VALUE PARTNERS, LP | |||
a Cayman Islands Limited Partnership | |||
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By |
| /s/ Andrew Thau |
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Name: |
| Andrew Thau |
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Title: |
| Managing Director |
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WHITEBOX MULTI-STRATEGY PARTNERS, LP | |||
a Cayman Islands Limited Partnership | |||
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By |
| /s/ Andrew Thau |
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Name: |
| Andrew Thau |
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Title: |
| Managing Director |
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PANDORA SELECT PARTNERS, LP | |||
a Cayman Islands Limited Partnership | |||
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By |
| /s/ Andrew Thau |
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Name: |
| Andrew Thau |
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Title: |
| Managing Director |
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WHITEBOX CREDIT PARTNERS, LP | |||
a Cayman Islands Limited Partnership | |||
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By |
| /s/ Andrew Thau |
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Name: |
| Andrew Thau |
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Title: |
| Managing Director |
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WHITEBOX GT FUND, LP | |||
a Delaware Limited Partnership | |||
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By |
| /s/ Andrew Thau |
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Name: |
| Andrew Thau |
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Title: |
| Managing Director |
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Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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ABBOT LABORATORIES ANNUITY RETIREMENT TRUST;
ABBOT-ABBVIE MULTIPLE EMPLOYER PENSION PLAN TRUST;
DUNHAM HIGH YIELD BOND FUND;
MARYLAND STATE RETIREMENT AND PENSION SYSTEM;
PUBLIC EMPLOYEES’ RETIREMENT ASSOCIATION OF NEW MEXICO;
PINEBRIDGE GLOBAL OPPORTUNISTIC DM CREDIT FUND LP;
SUNAMERICA SERIES TRUST – HIGH YIELD BOND PORTFOLIO;
STANDARD INSURANCE COMPANY;
TRANSAMERICA UNCONSTRAINED BOND;
PINEBRIDGE GLOBAL MULTI-STRATEGY HIGH YIELD BOND FUND; AND
VALIC COMPANY II – CORE BOND FUND
BY: PINEBRIDGE INVESTMENTS LLC | ||
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By |
| /s/ John Yovanovic |
Name: |
| John Yovanovic |
Title (if applicable): Managing Director and Head of High Yield Portfolio Management | ||
Date: |
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Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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Touchstone Strategic Trust – Touchstone Strategic Income Opportunities Fund | ||
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(Entity name if applicable) | ||
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By |
| /s/ Terrie A. Wiedenheft |
Name: |
| Terrie A. Wiedenheft |
Title (if applicable): Treasurer and Controller | ||
Date: |
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Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Andrew J. Super |
Name: |
| Andrew J. Super |
Title (if applicable): | ||
Date: |
| 3/4/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Brian McConn |
Name: |
| Brian McConn |
Title (if applicable): | ||
Date: |
| March 1, 2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Clee Heston |
Name: |
| Clee Heston |
Title (if applicable): CAO | ||
Date: |
| 3/4/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Cas Eichenseer |
Name: |
| Cas Eichenseer |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Chris Albaugh |
Name: |
| Chris Albaugh |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Dave Harger |
Name: |
| Dave Harger |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ David Banks |
Name: |
| David Banks |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ E. Dirk Hallen |
Name: |
| E. Dirk Hallen |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ James Laxson |
Name: |
| James Laxson |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Jami Kabus |
Name: |
| Jami Kabus |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ JP Srock |
Name: |
| JP Srock |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Luke Hayden |
Name: |
| Luke Hayden |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Matt Corcoran |
Name: |
| Matt Corcoran |
Title (if applicable): | ||
Date: |
| 2/29/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Mike Hahn |
Name: |
| Mike Hahn |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Mike Mesrobian |
Name: |
| Mike Mesrobian |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Robin Copley |
Name: |
| Robin Copley |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Stephen White |
Name: |
| Stephen White |
Title (if applicable): | ||
Date: |
| 2/29/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Tim Lambrecht |
Name: |
| Tim Lambrecht |
Title (if applicable): | ||
Date: |
| 2/29/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Tom Wilkie |
Name: |
| Tom Wilkie |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ Travis Frakes |
Name: |
| Travis Frakes |
Title (if applicable): | ||
Date: |
| 3/1/2024 |
Signature Page to Secured Seller Note
NOTEHOLDER: | ||
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(Entity name if applicable) | ||
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By |
| /s/ William Barker |
Name: |
| William Barker |
Title (if applicable): | ||
Date: |
| 2/29/2024 |
Signature Page to Secured Seller Note
Schedule 1
Noteholders
Annex 1
Agency Provisions
(b) Without limitation of the foregoing, each Noteholder shall reimburse the Agent, as applicable, upon demand for any costs or out-of-pocket expenses (including attorneys’ fees, costs and expenses) incurred by the Agent, as applicable, in connection with the preparation, execution, delivery, administration, modification, amendment, forbearance or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under any Note Documents, or any document contemplated by or referred to herein or in any Note Document, or in connection with any transaction contemplated hereunder, or in connection with any action taken or omitted to be taken by Agent or any of the Agent Indemnified Parties, as applicable, under or in connection with any of the foregoing including without limitation, exercising any of the Agent’s powers, rights, and remedies and performing its duties hereunder and thereunder (or omitting to do the same), in each case, to the extent that the Agent is not reimbursed for such expenses by or on behalf of the Borrower or the Guarantor, provided that such reimbursement by the Noteholders shall not affect the Borrower’s or the Guarantor’s continuing reimbursement obligations with respect thereto, provided further that the failure of any Noteholder to indemnify or reimburse the Agent shall not relieve any other Noteholder of its obligation in respect thereof. If any indemnity furnished to the Agent for any purpose shall, in the opinion of the Agent, be insufficient or become impaired, the Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished. The Noteholders hereby, jointly and severally, agree to pay all fees and reasonable and documented out-of-pocket costs and expenses of the Agent in connection
with the preparation, execution, delivery and administration of this Note and the other Note Documents, including without limitation, reasonable fees and expenses of legal counsel for the Agent, in each case to the extent incurred on or prior to the date of this Note. This Section 2(b) shall be subject to the Legal Expenses Limitation.
Annex 2
Expenses and Indemnity of the Agent
The parties to this Note covenant and agree as follows:
Annex 3
ERISA Restrictions; Non-Permitted Holders.
No transfer or exchange of an interest in this Note will be permitted to a Benefit Plan Investor, other than an ERISA Permitted Investor, and any such transfer will be null and void.
If any Non-Permitted Holder shall become the beneficial owner of an interest in this Note, the Borrower shall, promptly after discovery that such person is a Non-Permitted Holder by the Borrower, send notice to such Non-Permitted Holder demanding that such Non-Permitted Holder transfer its interest in this Note held by such person to a Person that is not a Non-Permitted Holder within 10 days of the date of such notice. If such Non-Permitted Holder fails to so transfer such interest in this Note, the Borrower shall have the right, without further notice to the Non-Permitted Holder, to sell such interest in this Note to a purchaser selected by the Borrower that is not a Non-Permitted Holder on such terms as the Borrower may choose. The Borrower may select the purchaser by soliciting one or more bids from one or more brokers or other market professionals that regularly deal in securities similar to this Note, and selling such interest in this Note to the highest such bidder. However, the Borrower may select a purchaser by any other means determined by it in its sole discretion. Each Noteholder, the Non-Permitted Holder and each other Person in the chain of title from a Noteholder to a Non-Permitted Holder, by its acceptance of an interest in this Note, agrees to cooperate with the Borrower and the Agent to effect such transfer. The proceeds of such sale, net of any commissions, expenses and taxes due in connection with such sale, shall be remitted to the Non-Permitted Holder. The terms and conditions of any sale under this subsection shall be determined in the sole discretion of the Borrower, and the Borrower shall not be liable to any Person having an interest in this Note sold as a result of any such sale or the exercise of such discretion.