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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 4/19/21 PetIQ, Inc. 8-K:1,8,9 4/13/21 13:4.4M Toppan Merrill Bridge/FA |
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Published Transaction CUSIP Number: 71639UAC7
Revolving Facility CUSIP Number: 71639UAD5
ABL CREDIT AND GUARANTY AGREEMENT
dated as of April 13, 2021,
among
PETIQ HOLDINGS, LLC,
PETIQ, LLC,
CERTAIN SUBSIDIARIES OF PETIQ HOLDINGS, LLC,
as Guarantor Subsidiaries,
THE LENDERS PARTY HERETO
and
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent and Collateral Agent
KEYBANC CAPITAL MARKETS INC.
as Joint Lead Arranger and Sole Bookrunner
THE HUNTINGTON NATIONAL BANK
as Joint Lead Arranger
$125,000,000 Senior Secured ABL Credit Facility
Page
SECTION 1. DEFINITIONS AND INTERPRETATION1
1.1.Definitions1
1.2.Accounting Terms; Certain Calculations79
1.3.Interpretation, Etc82
1.4.Currency Translation83
1.5.Classification of Loans and Borrowings83
1.6.Timing of Payment or Performance83
1.7.Rounding83
1.8.Cashless Rollovers84
1.9.Divisions84
1.10.Co-Borrowers84
SECTION 2. LOANS AND LETTERS OF CREDIT85
2.1.Revolving Loans85
2.2.Protective Advances87
2.3.Letters of Credit88
2.4.Pro Rata Shares; Obligations Several; Availability of Funds98
2.5.Use of Proceeds99
2.6.Evidence of Debt; Register; Notes99
2.7.Interest on Loans and Letter of Credit Disbursements100
2.8.Conversion/Continuation101
2.9.Default Interest102
2.10.Fees102
2.11.Repayment of Loans103
2.12.Voluntary Prepayments/Commitment Reductions103
2.13.Mandatory Prepayments104
2.14.[Reserved]105
2.15.General Provisions Regarding Payments105
2.16.Ratable Sharing108
2.17.Making or Maintaining Eurodollar Rate Loans109
2.18.Increased Costs; Capital Adequacy and Liquidity113
2.19.Taxes; Withholding, Etc114
2.20.Obligation to Mitigate118
2.21.Defaulting Lenders118
2.22.Replacement and Termination of Lenders121
2.23.Incremental Revolving Facilities122
2.24.Extension/Modification Offers125
2.25.Refinancing Facilities127
2.26.Swing Line Loans128
SECTION 3. CONDITIONS PRECEDENT129
3.1.Closing Date129
3.2.Each Credit Extension131
SECTION 4. REPRESENTATIONS AND WARRANTIES132
4.1.Organization; Requisite Power and Authority; Qualification132
4.2.Equity Interests and Ownership132
4.3.Due Authorization132
4.4.No Conflict132
4.5.Governmental Approvals133
4.6.Binding Obligation133
4.7.Historical Financial Statements; Projections133
4.8.No Material Adverse Change133
4.9.Adverse Proceedings133
4.10.Payment of Taxes133
4.11.Properties134
4.12.Environmental Matters134
4.13.No Defaults134
4.14.Governmental Regulation135
4.15.Federal Reserve Regulations135
4.16.Employee Matters135
4.17.Employee Benefit Plans135
4.18.Solvency136
4.19.Compliance with Laws136
4.20.Disclosure136
4.21.Collateral Matters136
4.22.Insurance137
4.23.Sanctioned Persons; Anti-Corruption Laws; PATRIOT Act137
4.24.Borrowing Base Certificate138
SECTION 5. AFFIRMATIVE COVENANTS138
5.1.Financial Statements and Other Reports138
5.2.Existence142
5.3.Payment of Taxes143
5.4.Maintenance of Properties143
5.5.Insurance143
5.6.Books and Records; Inspections144
5.7.Field Examinations and Inventory Appraisals144
5.8.Compliance with Laws145
5.9.Environmental Matters145
5.10.Subsidiaries146
5.11.Material Real Estate Assets146
5.12.Further Assurances146
5.13.Cash Management146
5.14.Post-Closing Matters148
SECTION 6. NEGATIVE COVENANTS149
6.1.Indebtedness149
6.2.Liens153
6.3.No Further Negative Pledges156
6.4.Restricted Payments; Certain Payments of Indebtedness157
6.5.Restrictions on Subsidiary Distributions160
6.6.Investments161
6.7.Fixed Charge Coverage Ratio166
6.8.Fundamental Changes; Disposition of Assets; Equity Interests of Subsidiaries166
6.9.Sales and Leasebacks170
6.10.Transactions with Affiliates170
6.11.Conduct of Business171
6.12.Hedge Agreements171
6.13.Amendments or Waivers of Organizational Documents and Certain Agreements172
6.14.Fiscal Year172
SECTION 7. GUARANTEE172
7.1.Guarantee of the Obligations172
7.2.Indemnity by Holdings and the Borrower; Contribution by the Guarantors172
7.3.Liability of Guarantors Absolute173
7.4.Waivers by the Guarantors175
7.5.Guarantors’ Rights of Subrogation, Contribution, Etc175
7.6.Continuing Guarantee176
7.7.Authority of the Guarantors or the Borrower176
7.8.Financial Condition of the Credit Parties176
7.9.Bankruptcy, Etc177
7.10.Keepwell177
SECTION 8. EVENTS OF DEFAULT178
8.1.Events of Default178
SECTION 9. AGENTS180
9.1.Appointment of Agents180
9.2.Powers and Duties181
9.3.General Immunity181
9.4.Acts in Individual Capacity184
9.5.Lenders’ and Issuing Banks’ Representations, Warranties and Acknowledgments184
9.6.Right to Indemnity185
9.7.Successor Administrative Agent and Collateral Agent185
9.8.Collateral Documents and Obligations Guarantee186
9.9.Withholding Taxes189
9.10.Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim189
9.11.Certain ERISA Matters190
9.12.Erroneous Payments191
SECTION 10. MISCELLANEOUS193
10.1.Notices193
10.2.Expenses195
10.3.Indemnity196
10.4.Set-Off197
10.5.Amendments and Waivers197
10.6.Successors and Assigns; Participations201
10.7.Independence of Covenants207
10.8.Survival of Representations, Warranties and Agreements207
10.9.No Waiver; Remedies Cumulative208
10.10.Marshalling; Payments Set Aside208
10.11.Severability208
10.12.Independent Nature of Lenders’ Rights208
10.13.Headings209
10.14.APPLICABLE LAW209
10.15.CONSENT TO JURISDICTION209
10.16.WAIVER OF JURY TRIAL209
10.17.Confidentiality210
10.18.Usury Savings Clause211
10.19.Counterparts211
10.20.Effectiveness; Entire Agreement211
10.21.PATRIOT Act212
10.22.Electronic Execution of Assignments212
10.23.No Fiduciary Duty212
10.24.ABL Intercreditor Agreement212
10.25.Acknowledgement and Consent to Bail-In of Affected Financial Institutions213
10.26.Acknowledgement Regarding Any Supported QFCs214
SCHEDULES: | | 2.1 | | Commitments |
| | 2.3 | | Existing Letters of Credit |
| | 4.2 | | Equity Interests and Ownership |
| | 4.22 | | Insurance |
| | 5.1 | | Borrowing Base Reports |
| | 5.14 | | Post-Closing Matters |
| | 6.1 | | Indebtedness |
| | 6.2 | | Liens |
| | 6.3 | | Negative Pledges |
| | 6.5 | | Restrictions on Subsidiary Distributions |
| | 6.6 | | Investments |
| | 6.10 | | Affiliate Transactions |
| | 10.1 | | Notices |
| | | ||
EXHIBITS: | | A | | ABL Intercreditor Agreement |
| | B | | Assignment Agreement |
| | C | | Borrowing Base Certificate |
| | D | | Compliance Certificate |
| | E | | Conversion/Continuation Notice |
| | F | | Counterpart Agreement |
| | G-1 | | Funding Notice |
| | G-2 | | Issuance Notice |
| | H | | Intercompany Indebtedness Subordination Agreement |
| | I | | Pledge and Security Agreement |
| | J | | Solvency Certificate |
| | K | | Supplemental Collateral Questionnaire |
| | L-1 | | Form of US Tax Certificate for Non-US Lenders that are not Partnerships for US Federal Income Tax Purposes |
| | L-2 | | Form of US Tax Certificate for Non-US Lenders that are Partnerships for US Federal Income Tax Purposes |
| | L-3 | | Form of US Tax Certificate for Non-US Participants that are not Partnerships for US Federal Income Tax Purposes |
| | L-4 | | Form of US Tax Certificate for Non-US Participants that are Partnerships for US Federal Income Tax Purposes |
ABL CREDIT AND GUARANTY AGREEMENT dated as of April 13, 2021, among PETIQ HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), PETIQ, LLC, an Idaho limited liability company (the “Borrower”), CERTAIN SUBSIDIARIES OF HOLDINGS party hereto, as Guarantor Subsidiaries, the LENDERS party hereto and KEYBANK NATIONAL ASSOCIATION (“KeyBank”), as Administrative Agent and Collateral Agent.
The Lenders have agreed, on the terms and conditions set forth herein, to extend a senior secured asset-based revolving credit facility to the Borrower consisting of Revolving Commitments in an aggregate initial amount of $125,000,000.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
Category | Quarterly Average Facility Utilization | Applicable Commitment Fee Rate |
Category 1 | ≥ 50% | 0.25% |
Category 2 | < 50% | 0.35% |
The Applicable Commitment Fee Rate (a) shall be the applicable rate per annum set forth in Category 2 above through and including the last day of the month in which the Administrative Agent receives a Compliance Certificate pursuant to Section 5.1(d) for the first full Fiscal Quarter after the Closing Date, and (b) thereafter, shall be determined upon the delivery of each subsequent Compliance Certificate, with any changes to the Applicable Commitment Fee Rate resulting from a change in Quarterly Average Facility Utilization becoming effective on the first day of the month following the Administrative Agent’s receipt of a Compliance Certificate pursuant to Section 5.1(d).
Category | Quarterly Average Excess Availability | Applicable Margin for Base Rate Loans | Applicable Margin for Eurodollar Rate Loans |
Category 1 | ≥ 66.7% | 0.00% | 1.25% |
Category 2 | ≥ 33.3% but < 66.7% | 0.00% | 1.50% |
Category 3 | < 33.3% | 0.00% | 1.75% |
The Applicable Margin (a) shall be the applicable rate per annum set forth in Category 2 above through and including the last day of the month in which the Administrative Agent receives a Compliance Certificate pursuant to Section 5.1(d) for the first full Fiscal Quarter after the Closing Date, and (b) thereafter, shall be determined upon the delivery of each subsequent Compliance Certificate, with any changes to the
Applicable Margin resulting from a change in Quarterly Average Excess Availability becoming effective on the first day of the month following the Administrative Agent’s receipt of a Compliance Certificate pursuant to Section 5.1(d); provided that the Applicable Margin shall be deemed to be the applicable rate per annum set forth in Category 3 above if the Borrower shall have failed to timely deliver any Borrowing Base Certificate or Compliance Certificate required to have been delivered by it hereunder until the first Business Day after the delivery of such Borrowing Base Certificate or Compliance Certificate (and thereafter the Applicable Margin shall be determined in accordance with the other provisions hereof). If any Borrowing Base Certificate or Compliance Certificate shall prove to have been inaccurate, at any time that this Agreement is in effect and any Loans or Commitments are outstanding hereunder and provided such inaccuracy is discovered within one year after the date on which the applicable Borrowing Base Certificate or Compliance Certificate was delivered, and such inaccuracy shall have resulted in the payment of interest or letter of credit fees hereunder at rates lower than those that were in fact applicable for any period had there been no such inaccuracy, then (x) the Borrower shall promptly deliver to the Administrative Agent a corrected Borrowing Base Certificate or Compliance Certificate, as applicable, for the applicable period and (y) the Borrower shall promptly pay to the Administrative Agent, for distribution to the Lenders at such time, the accrued interest and letter of credit fees that should have been paid but was not paid as a result of such inaccuracy; provided that payment of interest or letter of credit fees at rates lower than those that were in effect applicable as a result of such inaccuracy shall not in any event be deemed retroactively to be an Event of Default pursuant to Section 8.1(a), and such amount payable shall be calculated without giving effect to any additional interest payable on overdue amounts under Section 2.9 if paid promptly on demand. Nothing in this paragraph shall limit the rights of the Administrative Agent or any Lender under Section 2.9 or 8.
“Borrowing Base” means, at any time, an amount equal to:
The Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 5.1(l)(i) or pursuant to the definition of the term “Unrestricted Subsidiary” or Section 6.8(b)(xi) (or, prior to the first such delivery, the Borrowing Base Certificate referred to in Section 3.1(i)) and Reserves established in accordance with this definition.
Notwithstanding the foregoing, (a) in the event that as of the Closing Date, the Administrative Agent has not received a completed field examination conducted by or on behalf of the Administrative Agent, for the period of up to 90 days after the Closing Date (or such later date as may be agreed to by the Administrative Agent), the Borrowing Base shall be based on the Existing Field Examination, and in the event that a current field examination in form reasonably satisfactory to the Administrative Agent is not completed within 90 days after the Closing Date (or other later date to which the Administrative Agent agrees), clause (a) of the Borrowing Base shall be deemed to be $0 as of the 90th day (or such later date agreed to by the Administrative Agent) following the Closing Date, and (b) Eligible Accounts and Eligible Inventory acquired after the Closing Date pursuant to 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 (collectively, “Acquired Borrowing Base Assets”) shall be included in the Borrowing Base prior to Administrative Agent receiving a completed field examination or Inventory appraisal conducted by or on behalf of the Administrative Agent in respect of such Accounts and Inventory showing results reasonably satisfactory to it for a period of up to 90 days after the acquisition thereof (or such longer period as the Administrative Agent shall reasonably agree to in writing); provided, that until such completed field examination or Inventory appraisal is received, the Acquired Borrowing Base Assets shall not exceed 20% of the Borrowing Base. In connection with any such purchase or other acquisition, the Borrower may request that the Administrative Agent undertake a field examination or Inventory appraisal in respect of such Acquired Borrowing Base Assets and, upon such request, the Administrative Agent shall use commercially reasonable efforts to commence such field examination or Inventory appraisal within 90 days (which shall be at the expense of the Borrower and shall not be considered to be any limitation on field examinations and Inventory appraisals at the expense of the Borrower provided in Section 5.7).
The Administrative Agent will have the right to modify eligibility criteria (if the effect thereof is to reduce the Borrowing Base then in effect) and establish and modify Reserves, in each case in its Permitted Discretion, and any modified eligibility criteria or newly-established or modified Reserves shall become effective (a) if a Specified Event of Default shall have occurred and be continuing at such time or any modification to any Reserve results solely by virtue of mathematical calculations of the amount of the Reserve in accordance with the methodology of calculation previously disclosed and utilized, concurrently with the Administrative Agent provides written notice thereof to the Borrower, or (b) otherwise, on the fifth Business Day after the Administrative Agent provides written notice thereof to the Borrower (each such notice shall include a description in reasonable detail of the basis for such determination); provided that (i) during the five Business Day period referenced in clause (b), the Borrower will not be able to borrow against such Reserves, (ii) the Administrative Agent shall be available during such period to discuss any such proposed modification or Reserve with the Borrower and, without limiting the right of the Administrative Agent to modify eligibility criteria or to establish or modify Reserves in its Permitted Discretion, the Borrower may take such action as may be required so that the circumstances, conditions, events or
contingencies that are the basis for such modification or such Reserve no longer exist, in a manner and to the extent satisfactory to the Administrative Agent in its Permitted Discretion, (iii) any standard of eligibility or Reserve established or modified by the Administrative Agent shall bear a reasonable relationship to circumstances, conditions, events or contingencies that are the basis for such standards of eligibility or Reserve, as reasonably determined, without duplication, by the Administrative Agent in good faith, and shall not duplicate eligibility criteria contained in the definitions of “Eligible Accounts”, “Eligible Inventory”, “Eligible In-Transit Inventory” or “Eligible On-Hand Inventory, and (iv) the circumstances, conditions, events or contingencies existing or arising prior to the Closing Date and, in each case, disclosed in writing in the Initial ABL Inventory Appraisal or which the Administrative Agent had actual knowledge of prior the Closing Date shall not be the basis for any such establishment or modification after the Closing Date unless such establishment or modification is based on a material and adverse change in any such circumstance, condition, event or contingency after the Closing Date, provided that the Administrative Agent may establish and modify a Rent Reserve or a Reserve with respect to a third party warehouse or other bailee location in accordance with the express provisions hereof, notwithstanding that no such Reserve shall have been established on the Closing Date.
“Borrowing Base Certificate” means a Borrowing Base Certificate, substantially in the form of Exhibit C (with such changes thereto as may be reasonably required by the Administrative Agent from time to time to reflect the components of, or Reserves against, the Borrowing Base as provided for hereunder), together will all attachments and supporting documentation contemplated thereby, signed and certified as accurate and complete by a Financial Officer of the Borrower.
“Borrowing Base Reporting Date” means (a) the last day of each calendar month or (b) during any Weekly Reporting Period, the last day of each week.
“Change of Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder) (other than the Parent Company) of Equity Interests in Holdings representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests in Holdings, (b) the Borrower ceasing to be a direct or indirect wholly-owned Subsidiary of Holdings or (c) the occurrence of any “change of control” (or similar event, however denominated) under and as defined in the Term Credit Agreement or any credit agreement, indenture or other agreement or instrument evidencing or governing the rights of the holders of any other Material Indebtedness of Holdings, the Borrower or any other Restricted Subsidiary.
(I) there shall be included in determining Consolidated Adjusted EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property, business or asset acquired by Holdings, the Borrower or any other Restricted Subsidiary during such period (other than any Unrestricted Subsidiary) whether such acquisition occurred before or after the Closing Date to the extent not subsequently Disposed of (but not including the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired, including pursuant to a transaction consummated prior to the Closing Date, 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”), in each case based on the Acquired EBITDA of such Pro Forma Entity for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical Pro Forma Basis; and
(II)there shall be excluded in determining Consolidated Adjusted EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than any Unrestricted Subsidiary) Disposed of, closed or classified as discontinued operations by Holdings, the Borrower or any other Restricted Subsidiary during such period (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually Disposed of) (each such Person, property, business or asset so sold, transferred or otherwise disposed of, closed or classified, 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”), in each case based on the 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, disposition, closure, classification or conversion) determined on a historical Pro Forma Basis.
Notwithstanding anything herein to the contrary, Consolidated Adjusted EBITDA (before giving effect to any pro forma adjustments or other adjustments contemplated in the definitions of Pro Forma Basis, Pro Forma Compliance and Pro Forma Effect) shall be deemed to be $18,766,000 for the Fiscal Quarter ended March 31, 2020, $34,902,000 for the Fiscal Quarter ended June 30, 2020, $16,909,000 for the Fiscal Quarter ended September 30, 2020 and $13,017,000 for the Fiscal Quarter ended December 31, 2020.
“Consolidated First Lien Net Debt” means, on any date, (a) the sum of (i) the aggregate principal amount of Consolidated Total Debt outstanding as of such date that is secured by a Lien on any Collateral that does not rank junior to the Lien on the Collateral securing the Obligations plus (ii) without duplication, the aggregate principal amount of Permitted Pari Passu Secured Term Indebtedness outstanding as of such date, minus (b) the aggregate amount of Unrestricted Cash as of such date (but disregarding the proceeds of Indebtedness that is incurred on such date).
“Eligible In-Transit Inventory” means Inventory owned by a Credit Party that would be Eligible Inventory but for the application of clauses (f) and (i) of the definition thereof and that constitutes finished goods to be sold by a Credit Party in the ordinary course of business but at the time of determination is in transit (i) between a domestic distribution center, warehouse, shipping center, plant, factory, or other similar location of the Credit Parties and another such domestic location of the Credit Parties or (ii) from a veterinary facility to a domestic distribution center, warehouse, shipping center, plant, factory, or other similar location of the Credit Parties; provided that Eligible In-Transit Inventory shall exclude all Eligible On-Hand Finished Goods Inventory and any Eligible Inventory not located in the continental United States, provided, further that no Eligible Inventory shall be Eligible In-Transit Inventory unless it (i) has been in-transit for less than 30 days and (ii) has been fully paid for at the time of shipment to or by any Credit Party.
provided that (I) if, for purposes of determining capacity under clause (b) above, Pro Forma Effect is given to the entire committed amount of any Indebtedness with respect to which the Incremental Term Amount is being determined, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without any further testing under this definition (provided that such committed amount shall, solely for purposes of calculating availability under clause (b) above, at all times thereafter be deemed to be fully funded as Indebtedness for borrowed money), (II) in the case of any Permitted Term Indebtedness established or incurred concurrently in reliance on the Unrestricted Incremental Term Amount and in reliance on clause (b) above, the amount of such Permitted Term Indebtedness established or incurred in reliance on the Unrestricted Incremental Term Amount shall be disregarded for purposes of calculating any ratio under the Specified Permitted Term Indebtedness Ratio Requirement under clause (b) above, (III) in the case of any Permitted Term Indebtedness established or incurred in reliance on clause (b) above, any Loans incurred concurrently therewith or any other Indebtedness incurred concurrently therewith pursuant to and in accordance with any clause of Section 6.1 that does not require observance of the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio or the Total Net Leverage Ratio shall be disregarded for purposes of calculating any ratio under the Specified Permitted Term Indebtedness Ratio Requirement under clause (b) above, (IV) in the case of any Permitted Term Indebtedness established or incurred in reliance on clause (b) above, to the extent the proceeds thereof are intended to be applied to finance a Limited Conditionality Transaction, at the election of the Borrower, Pro Forma Compliance with the Specified Permitted Term Indebtedness Ratio Requirement may be tested in accordance with the provisions of Section 1.2(e), (V) any portion of any Permitted Term Indebtedness established or incurred in reliance on clause (a) above shall be reclassified as provided in Section 1.2(d), and (VI) any Permitted Term Indebtedness may be established or incurred in reliance on clause (a) or (b) above regardless of whether there is capacity under any such other clause above, or may be established or incurred in reliance in part on clause (a) or (b) above and in part on any such other clause above, all as determined by the Borrower in its sole discretion, provided that absent an election by the Borrower, to the extent that the applicable requirements have been satisfied, such incurrence shall be deemed to have been made pursuant to clause (b) above.
“Parent Company Capital Markets Indebtedness” means any debt securities of the Parent Company issued after the Closing Date.
provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness for borrowed money, other than Liens referred to in clauses (c), (d), (t) or (w).
“Swap Obligation” as defined in “Excluded Swap Obligation”.
The Lenders hereby irrevocably authorize the Administrative Agent to enter into any amendment to this Agreement or to any other Credit Document as may be necessary or appropriate in order to establish any Co-Borrower pursuant to this Section 1.10 and such technical amendments, and other customary amendments with respect to provisions of this Agreement relating to taxes for borrowers, in each case as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection therewith.
provided that, subject to Sections 2.3(k) and 2.3(l) and the other provisions hereof, the foregoing shall not release an Issuing Bank from such liability to the Borrower as may be determined in a final, non-appealable judgment of a court of competent jurisdiction against such Issuing Bank following reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of the Borrower to such Issuing Bank arising under, or in connection with, this Section 2.3 or any Letter of Credit.
provided that, subject to Sections 2.3(k) and 2.3(l) and the other provisions hereof, the foregoing shall not release an Issuing Bank from such liability to the Borrower as may be determined in a final, non-appealable judgment of a court of competent jurisdiction against such Issuing Bank following reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of the Borrower to such Issuing Bank arising under, or in connection with, this Section 2.3 or any Letter of Credit.
in each case, including that resulting from any Indemnitee’s own negligence; provided that, notwithstanding the foregoing, such indemnity shall not be available to any Indemnitee claiming indemnification under this Section 2.3(k) to the extent that such Letter of Credit Indemnified Costs (i) have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Parties or (ii) arise out of or in connection with any action, claim or proceeding not involving any Credit Party or the equityholders or Affiliates of any Credit Party (or the Related Parties of any Credit Party) that is brought by an Indemnitee against another Indemnitee (other than against any Agent or any Arranger (or any holder of any other title or role) in its capacity as such). The Borrower hereby agrees to pay any Indemnitee claiming indemnity on demand from time to time all amounts owing under this Section 2.3(k). If and to the extent that the obligations of Borrower under this Section 2.3(k) are unenforceable for any reason, the Borrower agrees to make the maximum contribution to the Letter of Credit Indemnified Costs permissible under applicable law. This indemnification provision shall survive termination of this Agreement and all Letters of Credit.
The applicable Base Rate or Adjusted Eurodollar Rate shall be determined by the Administrative Agent, and such determination shall be conclusive and binding on the parties hereto, absent manifest error.
provided, in each case, that at the commencement of each Interest Period for any Eurodollar Rate Borrowing, such Borrowing shall be in an amount that complies with Section 2.1(b).
In the event any Borrowing shall have been converted or continued in accordance with this Section 2.8 in part, such conversion or continuation shall be allocated ratably, in accordance with their applicable Pro Rata Shares, among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each part of such Borrowing resulting from such conversion or continuation shall be considered a separate Borrowing. This Section 2.8 shall not apply to Swing Line Loans or Protective Advances, which may not be converted or continued.
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal, interest, any reimbursement of a drawing under a Letter of Credit or any fees due to any Issuing Bank in its capacity as such, any Specified Cash Management Services Obligations and any Specified Hedge Obligations) payable to the Administrative Agent, the Collateral Agent, any other Agent, any Issuing Bank or the Swing Line Lender in its capacity as such (the amounts so applied to be distributed among such Secured Parties pro rata in accordance with the amounts of such Obligations owed to them on the date of any such distribution);
Second, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Protective Advances;
Third, to payment of that portion of the Obligations constituting principal of the Protective Advances;
Fourth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Swing Line Loans;
Fifth, to payment of that portion of the Obligations constituting principal of the Swing Line Loans;
Sixth, to payment of that portion of the Obligations constituting unreimbursed drawings under Letters of Credit and fees (including the fees accrued under Section 2.1) payable to any Issuing Bank in its capacity as such (the amounts so applied to be distributed among the Issuing Banks pro rata in accordance with the amounts of such Obligations owed to them on the date of any such distribution);
Seventh, to payment of an amount to the Administrative Agent equal to 102% of the maximum aggregate amount that is, or at any time thereafter pursuant to the terms thereof may become, available for drawing under all outstanding Letters of Credit (regardless of whether any conditions for drawing could then be met), to Cash Collateralize such Obligations for the ratable benefit of the Issuing Banks;
Eighth, to payment of that portion of the Obligations constituting indemnities, expenses and other amounts (other than principal, interest, fees, any Specified Cash Management Services Obligations and any Specified Hedge Obligations) payable to the Lenders (the amounts so applied to be distributed among the Lenders pro rata in accordance with the amounts of such Obligations owed to them on the date of any such distribution);
Ninth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Revolving Loans and fees payable to any Lender in its capacity as such (including all fees accrued under Section 2.10) (the amounts so applied to be distributed among the Lenders pro rata in accordance with the amounts of such Obligations owed to them on the date of any such distribution);
Tenth, to payment of that portion of the Obligations constituting unpaid principal of the Revolving Loans and to payment (in each case up to but not in excess of the amount of the Specified Pari Cash Management Amount or the Specified Pari Hedge Amount, as the case may be, most recently designated in respect thereof) of any Designated Cash Management Services Obligations arising under any Specified Pari Cash Management Services Agreement or any Specified Hedge Obligations under any Specified Pari Hedge Agreement (the amounts so applied to be distributed among the applicable Secured Parties pro rata in accordance with the amounts of such Obligations owed to them on the date of any such distribution);
Eleventh, to payment of all Specified Cash Management Services Obligations and all Specified Hedge Obligations that, in each case, are not covered under clause Tenth above (the amounts so applied to be distributed among the applicable Secured Parties pro rata in accordance with the amounts of such Obligations owed to them on the date of any such distribution);
Twelfth, to the payment of all other Obligations that are payable to the Secured Parties (the amounts so applied to be distributed among the applicable Secured Parties pro rata in accordance with the amounts of such Obligations owed to them on the date of any such distribution); and
Last, to the extent of any excess of such proceeds, if any, after all of the Obligations have been paid in full, to the Borrower or as otherwise required by law.
Notwithstanding the foregoing, (i) no amount received from any Guarantor shall be applied to any Excluded Swap Obligation of such Guarantor, (ii) application of amounts used to Cash Collateralize Letters of Credit to other obligations shall be subject to the consent of the Issuing Banks to the extent required under Section 2.3(h) and (iii) amounts used to Cash Collateralize Letters of Credit pursuant to Section 2.3(h) or clause Sixth above shall be applied to satisfy drawings under such Letters of Credit as they occur, and if any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. The Administrative Agent shall have absolute discretion as to the time of application of any such payments and proceeds in accordance with this Agreement.
then the Administrative Agent shall give notice (which may be telephonic) thereof to the Borrower and the Lenders as promptly as practicable, whereupon, (x) no Loans of such Class may be made as, or converted to, Eurodollar Rate Loans until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) any Funding Notice or Conversion/Continuation Notice given by the Borrower with respect to the Loans in respect of which such determination was made shall be deemed rescinded by the Borrower. The Administrative Agent shall promptly notify the Borrower and the Lenders when such circumstances no longer exist.
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, Issuing Bank or other Recipient hereunder (whether of principal, interest or any other amount) in respect of any Loan in an amount deemed by such Lender, such Issuing Bank or other Recipient to be material, then, from time to time upon request of such Lender, Issuing Bank or other Recipient, the Borrower will pay to such Lender, Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, Issuing Bank or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.17(c) if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto.
Notwithstanding the foregoing, solely with respect to the matters expressly identified on Schedule 5.14, the satisfaction by the Credit Parties of the foregoing conditions shall not be required on the Closing Date, and shall not be a condition to the making of the Credit Extension on the Closing Date, but instead shall be required to be completed pursuant to Section 5.14.
The Administrative Agent shall notify Holdings, the Borrower, the Lenders and the Issuing Banks of the Closing Date, and such notice shall be conclusive and binding.
On the date of any such Credit Extension (other than the making of a Protective Advance), the Borrower shall be deemed to have represented and warranted that the conditions specified in Sections 3.2(b) and 3.2(c) have been satisfied and that, after giving effect to such Credit Extension, the Total Utilization of Revolving Commitments (or any component thereof) shall not exceed the maximum amount thereof (or the maximum amount of any such component) specified in Section 2.1(a), 2.3(a) or 2.26(a).
In order to induce the Agents, the Lenders and the Issuing Banks to enter into this Agreement and to make each Credit Extension to be made by it hereunder, each Credit Party represents and warrants to each Agent, each Lender and each Issuing Bank on the Closing Date and on each other date as and to the extent required pursuant to this Agreement or any other Credit Document as follows:
Until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired, been terminated and the Letter of Credit Usage shall have been reduced to zero, each Credit Party covenants and agrees with the Agents, the Lenders and the Issuing Banks that:
Notwithstanding the foregoing, the obligations under clauses (a) and (b) of this Section may be satisfied with respect to financial information of Holdings and its consolidated Subsidiaries by furnishing (i) the applicable consolidated financial statements of the Parent Company or (ii) the Parent Company’s annual or quarterly reports, as applicable, filed with the SEC; provided that, with respect to each of clauses (i) and (ii), (A) such information is accompanied by a reasonably detailed reconciliation reflecting such financial information for the Parent Company and its Subsidiaries, on the one hand, and Holdings and its Subsidiaries on a standalone basis, on the other hand, and (B) to the extent such information is in lieu of information required to be provided under Section 5.1(a), such materials are audited by and accompanied by a report thereon of KPMG LLP or another independent registered public accounting firm
of recognized national standing (which report shall not contain a “going concern” or like qualification, exception or emphasis (other than a “going concern” or like qualification, exception or emphasis resulting solely from an upcoming maturity date of any Indebtedness or a prospective or actual non-compliance with any financial ratio or financial test with respect to any other Indebtedness) or any qualification, exception or emphasis as to the scope of audit) and shall state that such consolidated financial statements present fairly, in all material respects, the consolidated financial position of the Parent Company and its Subsidiaries as of the dates indicated and the consolidated results of operations and cash flows of the Parent Company and its Subsidiaries for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accounting firm in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards).
The Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.1 or otherwise are being distributed through the Platform, any document or notice that the Borrower has indicated contains Private-Side Information will not be posted on the portion of the Platform that is designated for Public Lenders, provided that the Borrower shall make any disclosure required so that each Unrestricted Subsidiary Reconciliation Statement shall be suitable for distribution to Public Lenders. The Borrower agrees to clearly designate all information provided to any Agent by or on behalf of any Credit Party that contains only Public-Side Information, and by doing so shall be deemed to have represented that such information contains only Public-Side Information. If the Borrower has not indicated whether a document or notice delivered pursuant to this Section 5.1 contains Private-Side Information, the Administrative Agent reserves the right to post such document or notice solely on the portion of the Platform that is designated for Private Lenders.
Information required to be delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(k) shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on the Platform or shall be available on the website of the SEC at http://www.sec.gov or on the website of the Borrower (provided, in each case, that the Borrower has notified the Administrative Agent (including by e-mail) that such information is available on such website and, if requested by the Administrative Agent, shall have provided hard copies to the Administrative Agent). Information required to be delivered pursuant to this Section 5.1 may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents.
Notwithstanding anything to the contrary contained in this Section 5.1, none of Holdings, the Borrower or any other Restricted Subsidiary will be required to deliver any information (i) that constitutes non-financial trade secrets or non-financial proprietary information or (ii) or in respect of which disclosure to the Administrative Agent, the Collateral Agent or any Lender (A) is prohibited by applicable law or any obligations of confidentiality binding upon Holdings, the Borrower or any other Subsidiary or (B) would result in a waiver of any attorney-client privilege or attorney work product protection inuring to Holdings, the Borrower or another Subsidiary, provided that the Borrower shall notify the Administrative Agent promptly upon obtaining knowledge that such information is being withheld and, in the case of clause (ii)(A) above, Holdings, the Borrower and the other Subsidiaries shall use commercially reasonable efforts to communicate or permit the delivery, to the extent permitted, of the applicable information in a way that would not violate the applicable law or any such obligation of confidentiality.
Until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or been terminated and the Letter of Credit Usage shall have been reduced to zero, each Credit Party covenants and agrees with the Agents, the Lenders and the Issuing Banks that:
Notwithstanding anything to the contrary in this Section 6.6, none of Holdings, the Borrower or any other Restricted Subsidiary shall make any Investment that results in or facilitates in any manner any Restricted Payment not permitted under Section 6.4(a).
provided that, in the case of clauses (i), (ii) and (iii) above, any such merger or consolidation shall not be permitted unless it, and each Investment resulting therefrom, is also permitted under Section 6.6 (other than in reliance on Section 6.6(q)).
THEN, (i) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g), automatically, and (ii) upon (A) the occurrence and during the continuance of any other Event of Default and (B) notice to the Borrower by the Administrative Agent provided at the request of (or with the consent of) the Requisite Lenders, (1) the Commitments and the obligation of each Issuing Bank to issue, amend or extend any Letter of Credit shall immediately terminate, (2) the unpaid principal amount of and accrued interest on the Loans and all other Obligations (other than the Specified Hedge Obligations and the Specified Cash Management Services Obligations) shall immediately become due and payable, and the Borrower shall immediately be required to deposit Cash Collateral in respect of Letter of Credit Usage in accordance with Section 2.3(h), in each case without presentment, demand, protest or other requirement of any kind, all of which are hereby expressly waived by each Credit Party, and (3) the Administrative Agent may cause the Collateral Agent to enforce any and all Liens created pursuant to the Collateral Documents.
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Issuing Bank, and each other Secured Party 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, the Issuing Banks or the other Secured Parties, to pay to the Administrative Agent any amount due to the Administrative Agent, in such capacity or in its capacity as the Collateral Agent, or to its Related Parties under the Credit Documents (including under Sections 10.2 and 10.3). To the extent that the payment of any such amounts due to the Administrative Agent, in such capacity or in its capacity as the Collateral Agent, or to its Related Parties out of the estate in any such proceeding shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other property that the Lenders, the Issuing Banks or the other Secured Parties may be entitled to receive in such proceeding, whether in liquidation or under any plan of reorganization or arrangement or otherwise. 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 or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank, or to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding.
provided that (1) for the avoidance of doubt, all Lenders shall be deemed directly and adversely affected by any waiver, amendment or other modification, or any consent, described in the preceding clauses (vii), (viii) and (x), and (2) any waiver, amendment or other modification, or any consent, described in this clause (b) shall only require the consent of the Lenders directly and adversely affected thereby and not the Requisite Lenders or any other Majority in Interest of any Class of Loans or Commitments.
Each Lender and Issuing Bank hereby expressly authorizes the Administrative Agent and/or the Collateral Agent to enter into any waiver, amendment or other modification of this Agreement and the other Credit Documents contemplated by this Section 10.5(e).
provided that:
“BHC Act Affiliate” of a Person means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.
“Covered Entity” means any of the following:
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
By: | |
| Name:McCord Christensen |
| Title: Chief Executive Officer |
PETIQ, LLC, as Borrower | |
By: | |
| Name:McCord Christensen |
| Title: Chief Executive Officer |
GUARANTOR SUBSIDIARIES:
Community Clinics, Inc. Community Veterinary Clinics, LLC Fidopharm Brands, LLC Fidopharm, Inc. Loradochem, Inc. Meridian Animal Health, LLC Pawsplus Management, LLC Pet Logic, L.L.C. Pet Services Operating, LLC PetIQ MFG, LLC PetIQ, LLC Sergeant’s Pet Care Products, LLC SPC Trademarks, LLC Tru Prodigy, LLC TruRX LLC Velcera, LLC VIP Petcare, LLC | |
By: | |
| Name:McCord Christensen |
|
KEYBANK NATIONAL ASSOCIATION, as the Administrative Agent, Collateral Agent and a Lender, | |
By: | |
| Name:Anthony Alexander |
| Title: Vice President |
COMERICA, as a Lender, | |
By: | /s/ Chris Thomson |
| Name:Chris Thomson |
| Title: Sr. Vice President |
This ‘8-K’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on: | 4/19/21 | |||
For Period end: | 4/13/21 | |||
2/28/21 | ||||
2/23/21 | ||||
12/31/20 | 10-K, 4 | |||
9/30/20 | 10-Q | |||
6/30/20 | 10-Q, 8-K | |||
5/19/20 | ||||
3/31/20 | 10-Q | |||
7/8/19 | 3 | |||
1/17/18 | 3, 4, 8-K, 8-K/A | |||
List all Filings |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/29/24 PetIQ, Inc. 10-K 12/31/23 116:13M Workiva Inc Wde… FA01/FA 3/01/23 PetIQ, Inc. 10-K 12/31/22 111:12M Workiva Inc Wde… FA01/FA 3/01/22 PetIQ, Inc. 10-K 12/31/21 97:12M Toppan Merrill Bridge/FA 8/05/21 PetIQ, Inc. 10-Q 6/30/21 85:11M Toppan Merrill Bridge/FA 5/07/21 PetIQ, Inc. 10-Q 3/31/21 83:8.9M Toppan Merrill Bridge/FA |