CONFIDENTIAL TREATMENT REQUESTED
CREDIT AGREEMENT
dated as of [●], 2025
among
NEXFORD INDUSTRIAL HOLDINGS INC., a Delaware corporation, as Borrower,
the GUARANTORS party hereto,
CRESCENT HARBOR BANK, N.A., as Administrative Agent and Collateral Agent,
CRESCENT HARBOR BANK, N.A., IRONWOOD CAPITAL MARKETS, LLC, and NORTHVANE SECURITIES, INC., as Joint Lead Arrangers and Joint Bookrunners,
and
the LENDERS from time to time party hereto
CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") is entered into as of [●], 2025, among NEXFORD INDUSTRIAL HOLDINGS INC., a corporation organized and existing under the laws of the State of Delaware (the "Borrower"), the GUARANTORS party hereto from time to time, CRESCENT HARBOR BANK, N.A., a national banking association, as Administrative Agent and Collateral Agent (in such capacities, the "Administrative Agent" and the "Collateral Agent," respectively), CRESCENT HARBOR BANK, N.A., IRONWOOD CAPITAL MARKETS, LLC, and NORTHVANE SECURITIES, INC., as Joint Lead Arrangers and Joint Bookrunners (in such capacities, the "Arrangers"), and the LENDERS from time to time party hereto.
RECITALS
WHEREAS, the Borrower is a wholly-owned direct subsidiary of Granite Peak NIH Holdings, LLC, a Delaware limited liability company ("Holdings"), which is owned by Granite Peak Capital Fund IV, LP (92%) and GP Fund IV Co-Invest, LP (8%), each an Affiliate of Granite Peak Capital Partners, LP (the "Sponsor");
WHEREAS, the Borrower has requested that the Lenders provide term loans in the aggregate principal amount of One Billion Four Hundred Million Dollars ($1,400,000,000) (the "Term Loans") on the terms and subject to the conditions set forth herein;
WHEREAS, the proceeds of the Term Loans will be used (i) to refinance in full all outstanding Indebtedness under the Existing Credit Agreement (as defined below), including the repayment of the Existing Term Loan in the approximate amount of $879,375,000 (consisting of $875,000,000 of outstanding principal and approximately $4,375,000 of accrued and unpaid interest) and the termination of the Existing Revolving Facility, (ii) to fund a distribution of approximately $335,000,000 from the Borrower to Holdings and thence to the equity holders of Holdings (the "Dividend Recapitalization"), (iii) to pay fees, commissions, costs, and expenses incurred in connection with the foregoing in the approximate amount of $38,625,000, and (iv) to retain approximately $147,000,000 as cash on the Borrower's balance sheet;
WHEREAS, each of the Guarantors has agreed to guarantee the Obligations of the Borrower under this Agreement and the other Loan Documents; and
WHEREAS, the Borrower and the other Loan Parties have agreed to grant security interests in substantially all of their assets to secure the Obligations.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto 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:
"ABR" means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1.00%, and (c) Term SOFR for a one-month Interest Period as published two (2) U.S. Government Securities Business Days prior to such day plus 1.00%; provided that if the ABR as so determined would be less than 1.00%, the ABR shall be deemed to be 1.00%. Any change in the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate, or Term SOFR shall be effective from and including the effective date of such change.
"ABR Loan" means any Term Loan bearing interest at a rate determined by reference to the ABR.
"Acquisition" means any transaction, or any series of related transactions, consummated after the Closing Date, by which the Borrower or any Restricted Subsidiary (a) acquires any going business or all or substantially all of the assets of any Person or of any business unit, division, or line of business of any Person, (b) acquires direct or indirect control of fifty percent (50%) or more of the Equity Interests of any Person, or (c) acquires by merger, consolidation, or amalgamation with any other Person, where the Borrower or the applicable Restricted Subsidiary is the surviving or continuing entity.
"Adjusted EBITDA" means, for any Test Period, an amount equal to Consolidated Net Income for such Test Period :
plus, without duplication and to the extent deducted (and not added back) in determining Consolidated Net Income for such Test Period:
(a) consolidated interest expense;
(b) provision for federal, state, local, and foreign income taxes (including deferred taxes);
(c) total depreciation and amortization expense;
(d) non-cash charges and losses (including non-cash equity-based compensation expense, non-cash impairment charges, and non-cash losses on the disposition of assets), excluding (x) any non-cash charge that represents an accrual of, or reserve for, cash charges in any future period or (y) any write-down of current assets;
(e) Specified Add-Backs;
(f) fees and expenses incurred in connection with the Transactions (including fees of advisors, investment bankers, accountants, and legal counsel);
(g) management, monitoring, consulting, and advisory fees paid to the Sponsor or its Affiliates to the extent permitted under Section 7.07;
(h) extraordinary losses or charges;
(i) losses attributable to minority interests;
(j) cash charges or expenses relating to any equity offering, Investment, Acquisition, disposition, recapitalization, or incurrence of Indebtedness not prohibited under this Agreement, in each case whether or not successful; and
(k) severance costs, relocation costs, signing bonuses, retention payments, and transition costs, in each case incurred in connection with any Acquisition;
minus, without duplication and to the extent included in determining Consolidated Net Income for such Test Period:
(x) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual of, or reserve for, potential cash items in any prior period);
(y) extraordinary gains; and
(z) gains attributable to minority interests.
For purposes of calculating Adjusted EBITDA for any Test Period, if during such Test Period (or after the end of such Test Period and prior to or simultaneously with the event for which such calculation is made) the Borrower or any Restricted Subsidiary shall have consummated a Permitted Acquisition, a disposition, or an Investment that constitutes a Specified Transaction, Adjusted EBITDA shall be calculated on a Pro Forma Basis to give effect to such Specified Transaction (and any related incurrence or repayment of Indebtedness) as if such Specified Transaction had occurred on the first day of such Test Period. For the avoidance of doubt, as of December 31, 2024 (the last day of the most recently ended Test Period prior to the Closing Date), Adjusted EBITDA equals $385,000,000, reflecting reported EBITDA of $357,000,000 plus $28,000,000 in Specified Add-Backs.
"Administrative Agent" means Crescent Harbor Bank, N.A., a national banking association, in its capacity as administrative agent for the Lenders hereunder, and its successors and assigns in such capacity.
"Administrative Agent's Office" means the Administrative Agent's office located at 320 Federal Street, Boston, Massachusetts 02110, or such other address as the Administrative Agent may from time to time designate by notice to 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, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person. For purposes of this definition, "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise; provided that, notwithstanding the foregoing, (a) no portfolio company of the Sponsor or any of its Affiliates shall be deemed an Affiliate of the Borrower or any Restricted Subsidiary unless such portfolio company is a direct or indirect equity holder of Holdings or the Borrower, and (b) none of the Administrative Agent, any Lender, or any of their respective Affiliates shall be deemed an Affiliate of the Borrower or any Restricted Subsidiary solely by reason of this Agreement.
"Agent Parties" has the meaning set forth in Section 10.02(c).
"Agreement" means this Credit Agreement, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Anti-Corruption Laws" means the Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act 2010, and all other applicable laws, rules, and regulations of any jurisdiction concerning or relating to bribery or corruption.
"Anti-Money Laundering Laws" means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.), and all other applicable laws, rules, and regulations of any jurisdiction concerning or relating to money laundering.
"Applicable Rate" means, with respect to any Term Loan that is (a) a Term SOFR Loan, 4.00% (400 basis points) per annum, and (b) an ABR Loan, per annum.
"Arranger" means each of Crescent Harbor Bank, N.A., Ironwood Capital Markets, LLC, and Northvane Securities, Inc., in their respective capacities as Joint Lead Arrangers and Joint Bookrunners under this Agreement.
"Assignment and Assumption" means an assignment and assumption agreement substantially in the form of Exhibit D or any other form approved by the Administrative Agent.
"Available Amount" means, as of any date of determination (the "Available Amount Determination Date"), a cumulative amount equal to (without duplication):
(a) (the "Starter Amount"); plus
(b) 50% of Consolidated Net Income (if positive; and without deduction if negative) for each fiscal quarter of the Borrower ending after the Closing Date and on or before the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.01 (commencing with the fiscal quarter ending June 30, 2025); plus
(c) the aggregate amount of cash returns on Investments (including dividends, interest, distributions, returns of capital, repayments, and proceeds of sale or other disposition) previously made using the Available Amount; plus
(d) the aggregate amount of cash equity contributions received by the Borrower from Holdings (or any direct or indirect parent of Holdings) after the Closing Date that are designated as increasing the Available Amount (and not previously applied as a cure under Section 7.09); plus
(e) the aggregate amount of net cash proceeds received by the Borrower from the issuance or sale of Equity Interests (other than Disqualified Equity Interests) of the Borrower or any direct or indirect parent of the Borrower after the Closing Date that are contributed to the capital of the Borrower and designated as increasing the Available Amount;
minus
the aggregate amount of Restricted Payments made in reliance on the Available Amount prior to such date; minus
the aggregate amount of Investments made in reliance on the Available Amount prior to such date.
The Available Amount shall not be less than zero at any time.
"Bail-In Action" means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected 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, regulation, rule, or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation, or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms, or other financial institutions or their affiliates.
"Bank Secrecy Act" has the meaning set forth in the definition of "Anti-Money Laundering Laws."
"Bankruptcy Code" means Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq.
"Benchmark Replacement" means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(a) the sum of (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark, giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities, and (ii) the related Benchmark Replacement Adjustment; or
(b) the sum of (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark, giving due consideration to any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities, and (ii) the related Benchmark Replacement Adjustment.
"Benchmark Replacement Adjustment" means, with respect to any replacement of the then-current Benchmark with an Unadjusted 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, giving due consideration to (a) 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, or (b) 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 U.S. dollar-denominated syndicated credit facilities.
"Benchmark Replacement Date" means the earliest to occur of the following events with respect to the then-current Benchmark: (a) in the case of clause (a) or (b) of the definition of "Benchmark Transition Event," the later of (i) the date of the public statement or publication of information referenced therein and (ii) 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); or (b) in the case of clause (c) of the definition of "Benchmark Transition Event," the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative.
"Benchmark Transition Event" means the occurrence of one or more of the following events with respect to the then-current Benchmark: (a) 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); (b) 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 NYFRB, the CME Group Benchmark Administration Limited, 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), in each case which states that the administrator of such Benchmark (or the published component used in the calculation thereof) 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 (c) 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 not, or as of a specified future date will not be, representative.
"Beneficial Ownership Certification" means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
"Beneficial Ownership Regulation" means 31 C.F.R. § 1010.230.
"Borrower" has the meaning set forth in the preamble to this Agreement.
"Borrowing Request" means a request by the Borrower for a Borrowing in accordance with Section 2.02, substantially in the form of Exhibit A or such other form as shall be approved by the Administrative Agent.
"Business Day" means any day other than a Saturday, a Sunday, or a day on which banking institutions in New York City are authorized or required by law, regulation, or executive order to close; provided that, when used in connection with a Term SOFR Loan, the term "Business Day" shall also exclude any day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
"Capital Expenditures" means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or should be included in "additions to property, plant or equipment" or similar items reflected in the consolidated statement of cash flows of the Borrower and its Restricted Subsidiaries, but excluding (a) expenditures to the extent financed with insurance proceeds or condemnation awards, (b) expenditures constituting Permitted Acquisitions, and capitalized interest. For the avoidance of doubt, Capital Expenditures for the twelve-month period ending December 31, 2024 were $78,000,000.
"Cash Equivalents" means, as of any date of determination, any of the following: (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States government or (ii) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date; (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody's (or the equivalent rating from any successor or replacement rating agency); (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody's; (d) certificates of deposit, time deposits, or bankers' acceptances maturing within one year after such date and issued or accepted by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia that (i) is at least "adequately capitalized" (as defined in the regulations of its primary federal banking regulator) and (ii) has combined capital and surplus of at least $500,000,000; (e) shares of any money market fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (a) through (d) above, (ii) has net assets of not less than $500,000,000, and (iii) has the highest rating obtainable from either S&P or Moody's (or the equivalent rating from any successor or replacement rating agency); and (f) in the case of any Foreign Subsidiary, substantially equivalent instruments denominated in the local currency of the jurisdiction in which such Foreign Subsidiary is organized, with credit quality and maturity comparable to those described in clauses (a) through (e) above.
"CFC" means a "controlled foreign corporation" within the meaning of Section 957 of the IRC.
"CFC Holdco" means any Domestic Subsidiary of the Borrower that is a direct or indirect parent of a CFC and substantially all of the assets of which (determined on a consolidated basis) consist of Equity Interests (or Equity Interests and Indebtedness) of one or more CFCs; for the avoidance of doubt, CFC Holdco includes Nexford International Holdings, Inc.
"Change of Control" means the occurrence of any of the following:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than the Permitted Holders, shall become the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Equity Interests representing more than of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings;
(b) the Borrower shall cease to be a direct, wholly-owned Subsidiary of Holdings (other than directors' qualifying shares and other nominal amounts of Equity Interests required to be held by other Persons under applicable law); or
(c) the occurrence of a "Change of Control" (or any comparable term, however denominated) under, and as defined in, the Senior Unsecured Notes Indenture, as in effect on the Closing Date .
"Closing Date" means the date on which all of the conditions precedent set forth in Section 4.01 shall have been satisfied or waived in accordance with the terms hereof [expected: March 28, 2025].
"Collateral" means all property and assets in which Liens are purported to be created by the Security Documents.
"Collateral Agent" means Crescent Harbor Bank, N.A., in its capacity as collateral agent for the Secured Parties under the Security Documents, and its successors and assigns in such capacity.
"Commitment" means, with respect to each Lender, the commitment of such Lender to make a Term Loan hereunder on the Closing Date, expressed as a dollar amount set forth opposite such Lender's name on Schedule 2, or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as applicable. The aggregate amount of the Commitments of all Lenders is $1,400,000,000.
"Compliance Certificate" means a certificate substantially in the form of Exhibit B.
"Consolidated First Lien 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 that is secured by a Lien on any property or asset of the Borrower or any Restricted Subsidiary on a pari passu basis with the Liens securing the Obligations under this Agreement and the other Loan Documents.
"Consolidated Net Income" means, for any period, the net income (or loss) of the Borrower and its Restricted Subsidiaries on a consolidated basis for such period determined in accordance with GAAP; provided that there shall be excluded therefrom (without duplication):
(a) the net income (or loss) of any Person that is not a Restricted Subsidiary (or that is accounted for by the equity method of accounting), except to the extent of the amount of dividends or similar distributions actually paid in cash (or to the extent converted into Cash Equivalents) to the Borrower or a Restricted Subsidiary by such Person during such period;
(b) solely for purposes of calculating the Available Amount, the net income (or loss) of any Restricted Subsidiary (other than any Subsidiary Guarantor) to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its organizational documents or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to such Restricted Subsidiary or its stockholders or members, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived;
(c) the net income of any Person acquired in a pooling of interests transaction for any period prior to the date of such acquisition;
(d) any extraordinary gains or losses;
(e) any non-cash equity-based compensation charges or expenses, including any such charges or expenses arising from stock options, restricted stock grants, or other equity incentive programs;
(f) any unrealized gains or losses in respect of Hedging Obligations or any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions;
(g) any gain or loss realized upon the sale or other disposition of any property or asset of the Borrower or any Restricted Subsidiary that is not sold in the ordinary course of business (as determined in good faith by the Borrower);
(h) the cumulative effect of a change in accounting principles
"Consolidated Total Debt" means, as of any date of determination, the aggregate principal amount of all Indebtedness (other than (a) contingent obligations in respect of letters of credit, bank guarantees, bankers' acceptances, and similar instruments, except to the extent of unreimbursed drawings thereunder, and (b) Hedging Obligations) of the Borrower and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP.
"Credit Spread Adjustment" means (a) 0.10% (10 basis points) per annum for any Term SOFR Loan with a one-month Interest Period and (b) 0.15% (15 basis points) per annum for any Term SOFR Loan with a three-month Interest Period.
"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 constitute an Event of Default.
"Default Rate" means a rate per annum equal to the then-applicable Applicable Rate plus 2.00% (200 basis points).
"Disqualified Equity Interests" means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the occurrence of any event or condition, (a) matures or is mandatorily redeemable (other than solely for Equity Interests that are not Disqualified Equity Interests), pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof (other than solely for Equity Interests that are not Disqualified Equity Interests), in whole or in part, or (c) is convertible into or exchangeable for Indebtedness or Equity Interests that constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date.
"Dividend Recapitalization" means the distribution of approximately $335,000,000 from the Borrower to Holdings and thence to the equity holders of Holdings, funded from the proceeds of the Term Loans and consummated on the Closing Date simultaneously with the initial funding.
"Dollars" or "$" means the lawful currency of the United States.
"Domestic Subsidiary" means any Subsidiary of the Borrower organized under the laws of the United States, any state thereof, or the District of Columbia.
"ECF Percentage" means:
(a) 50%, if the First Lien Net Leverage Ratio as of the last day of the relevant fiscal year is greater than 4.25:1.00;
(b) 25%, if the First Lien Net Leverage Ratio as of the last day of the relevant fiscal year is less than or equal to 4.25:1.00 but greater than and
(c) 0%, if the First Lien Net Leverage Ratio as of the last day of the relevant fiscal year is less than or equal to
"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), or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) and is subject to consolidated supervision with its parent.
"EEA Member Country" means any member state 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.
"Environmental Laws" means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, or binding agreements issued, promulgated, or entered into by or with any Governmental Authority, in each case relating to the environment, preservation or reclamation of natural resources, the management, release, or threatened release of any Hazardous Material, or to health and safety matters.
"Equity Interests" means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust, or other ownership interests in a Person, and any warrants, options, or other rights entitling the holder thereof to purchase or acquire any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or 414(c) of the IRC or, solely for purposes of Section 302 of ERISA and Section 412 of the IRC, is treated as a single employer under Section 414 of the IRC.
"ERISA Event" means (a) a Reportable Event with respect to any Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity 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) the complete or partial withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer Plan, or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension 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; (e) 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; or (f) 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 the Borrower or any ERISA Affiliate.
"Event of Default" has the meaning set forth in Section 8.01.
"Excess Cash Flow" means, for any fiscal year, an amount equal to:
(a) Adjusted EBITDA for such fiscal year; minus
(b) the aggregate amount of cash interest expense (including the cash portion of any original issue discount or upfront fees that are deemed to constitute interest expense) actually paid by the Borrower and its Restricted Subsidiaries during such fiscal year; minus
(c) the aggregate amount of federal, state, local, and foreign income taxes actually paid in cash by the Borrower and its Restricted Subsidiaries during such fiscal year (including any tax distributions to equity holders to the extent permitted); minus
(d) the aggregate amount of scheduled amortization payments of principal made during such fiscal year in respect of the Term Loans and any other Indebtedness that is secured on a pari passu basis with the Term Loans; minus
(e) the aggregate amount of Capital Expenditures actually made in cash during such fiscal year (to the extent funded from internally generated cash flow and not financed with the proceeds of Indebtedness or equity contributions); minus
(f) the aggregate amount of cash consideration paid in connection with Permitted Acquisitions during such fiscal year (to the extent funded from internally generated cash flow and not financed with the proceeds of Indebtedness or equity contributions); minus
(g) the aggregate amount of Restricted Payments made during such fiscal year (to the extent made from the Available Amount or the general Restricted Payment basket and paid in cash);
plus or minus
(h) decreases (or increases) in working capital of the Borrower and its Restricted Subsidiaries during such fiscal year (calculated as changes in current assets (excluding cash and Cash Equivalents, the current portion of deferred tax assets, and the effects of reclassifications of assets as current to long-term) minus changes in current liabilities (excluding the current portion of long-term Indebtedness, the current portion of deferred tax liabilities, and the effects of reclassifications of liabilities as current to long-term) ); plus or minus
(i) other customary adjustments as reasonably agreed between the Borrower and the Administrative Agent.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder.
"Excluded Assets" means:
(a) any motor vehicles and other assets subject to certificates of title with a book value below per individual vehicle or asset;
(b) letter of credit rights (as defined in the UCC) having a face amount of less than
(c) commercial tort claims (as defined in the UCC) where the amount claimed is less than
(d) any lease, license, franchise, charter, authorization, or agreement to the extent that the granting of a security interest therein would violate or invalidate such lease, license, franchise, charter, authorization, or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Restricted Subsidiary) after giving effect to the applicable anti-assignment provisions of the UCC and other applicable law; provided that the foregoing exclusion shall not apply to the extent that any such prohibition would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, or 9-409 of the UCC;
(e) any governmental license or state or local franchise to the extent that the granting of a security interest therein is prohibited or restricted by applicable law;
(f) any Equity Interests in any joint venture to the extent that the granting of a security interest therein is prohibited by the terms of the applicable joint venture agreement; provided that each applicable Loan Party shall use commercially reasonable efforts to obtain any consent necessary to permit such pledge;
(g) Equity Interests in any CFC in excess of 65% of the total outstanding voting Equity Interests of such CFC;
(h) any asset as to which the Administrative Agent and the Borrower reasonably agree that the cost of obtaining a security interest therein or perfection thereof is excessive in relation to the benefit to the Secured Parties of the security to be afforded thereby
"Existing Credit Agreement" means the Credit Agreement dated as of June 14, 2019, among Nexford Industrial Holdings Inc., as borrower, the guarantors party thereto, Atlas Meridian Bank, N.A., as administrative agent and collateral agent, and the lenders party thereto, as amended by the First Amendment dated as of March 20, 2020, the Second Amendment dated as of November 8, 2021, the Third Amendment dated as of April 15, 2023, and the Fourth Amendment dated as of September 12, 2024.
"Existing Revolving Facility" means the $190,000,000 revolving credit facility under the Existing Credit Agreement, which as of the date hereof is undrawn and which will be terminated on the Closing Date.
"Existing Term Loan" means the first lien term loan under the Existing Credit Agreement in an original aggregate principal amount of $875,000,000, to be repaid in full on the Closing Date; the estimated payoff amount as of the anticipated Closing Date is $879,375,000 (consisting of $875,000,000 of outstanding principal plus approximately $4,375,000 of accrued and unpaid interest).
"FATCA" means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the IRC, and any fiscal or regulatory legislation, rules, or practices adopted pursuant to any intergovernmental agreement, treaty, or convention among Governmental Authorities and implementing such Sections of the IRC.
"Federal Funds Effective Rate" means, for any day, the rate per annum calculated by the NYFRB based on such day's federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate.
"Fee Letter" means the Fee Letter dated as of February 18, 2025, among the Borrower and Crescent Harbor Bank, N.A. (individually and on behalf of the other Arrangers), as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Financial Covenant" has the meaning set forth in Section 7.09.
"First Lien Net Leverage Ratio" means, as of any date of determination, the ratio of (a) Consolidated First Lien Debt as of such date minus the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries held in deposit accounts or securities accounts subject to a control agreement in favor of the Collateral Agent (not to exceed $[200,000,000] for purposes of this calculation) as of such date, to (b) Adjusted EBITDA for the most recently ended Test Period. For the avoidance of doubt, the First Lien Net Leverage Ratio on a pro forma basis as of the Closing Date, after giving effect to the Transactions, is ($1,400,000,000 − $100,000,000) ÷ $385,000,000 = 3.38x.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is not a Domestic Subsidiary.
"Free-and-Clear Basket" means, as of any date of determination, an amount equal to the greater of (a) $280,000,000 and (b) 100% of Adjusted EBITDA for the most recently ended Test Period (calculated without giving pro forma effect to any Specified Transaction to be consummated in connection with the utilization of such basket).
"Frozen GAAP Date" means the Closing Date.
"GAAP" means United States generally accepted accounting principles as in effect on the Frozen GAAP Date; provided that (a) the Borrower may elect, by written notice to the Administrative Agent, to adopt any change in GAAP occurring after the Frozen GAAP Date for purposes of this Agreement (and, upon such election, all references to GAAP herein shall thereafter mean GAAP as so changed), and (b) all financial statements, Compliance Certificates, and calculations required to be delivered or made hereunder shall be prepared or made in accordance with GAAP as in effect at the time of preparation thereof (or, if the Borrower has made the election described in clause (a), as so changed).
"Governmental Authority" means the government of the United States or any other nation, or of any political subdivision thereof, whether state, provincial, or local, and any agency, authority, instrumentality, regulatory body, court, central bank, or other entity exercising executive, legislative, judicial, taxing, regulatory, or administrative powers or functions of or pertaining to government (including any supra-national body such as the European Union or the European Central Bank).
"Guarantee Agreement" means the Guarantee Agreement, dated as of the Closing Date, among the Guarantors party thereto and the Collateral Agent, substantially in the form agreed upon by the parties.
"Guarantors" means, collectively, (a) Holdings (in its capacity as the "Holdings Guarantor") and (b) each Subsidiary Guarantor, and "Guarantor" means any one of them.
"Hazardous Materials" means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes, or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes, and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
"Hedging Obligations" means, with respect to any Person, the obligations of such Person under interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, currency swap agreements, currency exchange agreements, commodity swap agreements, commodity cap agreements, commodity collar agreements, and other similar agreements or arrangements designed to protect against fluctuations in interest rates, currency exchange rates, or commodity prices.
"Holdings" means Granite Peak NIH Holdings, LLC, a limited liability company organized under the laws of the State of Delaware and the direct parent of the Borrower.
"Incremental Amount" means, as of any date of determination, the sum of:
(a) the Free-and-Clear Basket (the greater of $280,000,000 and 100% of Adjusted EBITDA for the most recently ended Test Period); plus
(b) an unlimited amount, provided that, after giving pro forma effect to the incurrence of such Indebtedness and the application of the net proceeds thereof (including for any acquisition to be financed therewith), the First Lien Net Leverage Ratio (on a pro forma basis as of the last day of the most recently ended Test Period for which financial statements have been delivered) does not exceed 4.50:1.00.
"Incremental Equivalent Debt" means Indebtedness incurred by the Borrower or any Restricted Subsidiary in the form of secured or unsecured notes or loans (whether issued in a public or private offering or placed directly with institutional investors) that (a) utilizes capacity under the Incremental Amount , (b) is not incurred under this Agreement, (c) is not guaranteed by any Person other than a Guarantor, (d) if secured, is secured only by assets constituting Collateral (and subject to an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent), (e) has a final maturity date that is no earlier than ninety-one (91) days after the Maturity Date (in the case of term debt) or has a maturity date that is no earlier than the Maturity Date (in the case of revolving debt), and (f) does not have a weighted average life to maturity that is shorter than the remaining weighted average life to maturity of the Term Loans at the time of incurrence.
"Incremental Revolving Commitments" means revolving credit commitments established pursuant to Section 2.14 on terms set forth in the applicable Incremental Amendment.
"Incremental Term Loans" means term loans established pursuant to Section 2.14 on terms set forth in the applicable Incremental Amendment.
"Indebtedness" means, with respect to any Person, without duplication: (a) all obligations for borrowed money; (b) all obligations evidenced by bonds, debentures, notes, or similar instruments; (c) all obligations in respect of the deferred purchase price of property or services (other than trade payables and accrued expenses incurred in the ordinary course of business); (d) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed; (e) all Capitalized Lease Obligations; (f) the face amount of all letters of credit issued for the account of such Person and, without duplication, all unreimbursed drawings thereunder; (g) all Guarantee Obligations; (h) all obligations under purchase price adjustment provisions of acquisition agreements (including earn-outs) to the extent recorded as a liability on the balance sheet; and (i) all Disqualified Equity Interests.
"Indemnified Taxes" means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
"Intercreditor Agreement" means the First Lien/Unsecured Intercreditor Agreement, dated as of the Closing Date, among the Collateral Agent, Pinnacle Trust Company (in its capacity as trustee for the holders of the Senior Unsecured Notes), and the Borrower, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Interest Period" means, with respect to any Term SOFR Loan, the period commencing on the date such Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the numerically corresponding day in the calendar month that is one (1) three (3) months thereafter (in each case, subject to the availability of such tenor for Term SOFR), as the Borrower may elect in the applicable Borrowing Request; 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.
"Investment" means, with respect to any Person, all direct or indirect acquisitions or investments by such Person in, or of, (a) Equity Interests, bonds, notes, debentures, or other securities of any other Person, (b) loans, advances, or capital contributions to any other Person, or (c) purchases or other acquisitions of all or substantially all of the assets of another Person or any division, unit, or business of another Person.
"IP Security Agreement" means the intellectual Property Security Agreement, dated as of the Closing Date, among the Borrower, the Guarantors party thereto, and the Collateral Agent.
"IRC" means the Internal Revenue Code of 1986, as amended from time to time.
"Lender" means each financial institution from time to time party hereto as a lender, and "Lenders" means all such Persons collectively.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, preference, priority, or other security interest or preferential arrangement in the nature of a security interest 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 financing lease having substantially the same economic effect as any of the foregoing).
"Limited Condition Transaction" means (a) any Permitted Acquisition , the consummation of which is not conditioned on the availability of, or on obtaining, third-party financing, or (b) any irrevocable redemption, repurchase, defeasance, satisfaction and discharge, or repayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge, or repayment.
"Loan Documents" means, collectively, this Agreement, the Guarantee Agreement, the Security Agreement, each Pledge Agreement, the IP Security Agreement, the Intercreditor Agreement, each Note (if any), each Borrowing Request, each Compliance Certificate, the Fee Letter, and each other agreement, instrument, or document executed and delivered by a Loan Party pursuant to or in connection with this Agreement.
"Loan Parties" means the Borrower and the Guarantors, collectively, and "Loan Party" means any one of them.
"Material Adverse Effect" means a material adverse effect on (a) the business, financial condition, operations, or results of operations of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to perform their respective payment obligations under any Loan Document, or (c) the rights and remedies of the Administrative Agent, the Collateral Agent, and the Lenders under any Loan Document .
"Maturity Date" means [March 28, 2032], or such earlier date on which all outstanding Term Loans become due and payable pursuant to the terms hereof (whether by acceleration or otherwise).
"MFN Protection" or "Most Favored Nation" has the meaning set forth in Section 2.14(b).
"Mortgaged Properties" means the real properties listed on Schedule 6, consisting of (1) 1400 Industrial Parkway, Schaumburg, Illinois 60173 (Cook County, Illinois; appraised value: $85,000,000), (2) 2750 Commerce Drive, Rockford, Illinois 61101 (Winnebago County, Illinois; appraised value: $42,000,000), (3) 600 Manufacturers Row, Greenville, South Carolina 29607 (Greenville County, South Carolina; appraised value: $38,000,000), and (4) 9100 Westpark Industrial Boulevard, Houston, Texas 77063 (Harris County, Texas; appraised value: $28,000,000), together with all improvements thereon and all appurtenances thereto. The total appraised value of the Mortgaged Properties is $193,000,000.
"Multiemployer Plan" means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
"Net Cash Proceeds" means:
(a) with respect to any asset sale, the aggregate cash proceeds (including Cash Equivalents and any cash received upon conversion of non-cash consideration into cash) received by the Borrower or any Restricted Subsidiary in connection with such sale, minus (i) the direct costs relating to such sale (including legal, accounting, and investment banking fees, sales commissions, and relocation expenses), (ii) taxes paid or reasonably estimated to be payable as a result of such sale, (iii) amounts required to be applied to the repayment of Indebtedness (other than the Obligations) secured by a Lien on the asset sold (to the extent such Lien is a Permitted Lien that is senior to or pari passu with the Liens securing the Obligations), and (iv) appropriate amounts to be provided as a reserve against liabilities associated with such sale, including pension and other post-employment benefit liabilities, liabilities related to environmental matters, and indemnification obligations;
(b) with respect to any issuance of Indebtedness, the aggregate cash proceeds received by the Borrower or any Restricted Subsidiary therefrom, minus all fees, underwriting discounts, commissions, costs, and other expenses incurred in connection therewith; and
(c) with respect to any insurance recovery or condemnation award, the aggregate cash proceeds received by the Borrower or any Restricted Subsidiary, minus all costs and expenses incurred in connection with the collection thereof.
"Note" means a promissory note substantially in the form of Exhibit C, executed by the Borrower in favor of a Lender, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Term Loan made by such Lender.
"NYFRB" means the Federal Reserve Bank of New York.
"Obligations" means all advances to, and debts, liabilities, obligations, covenants, and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Term 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 and fees that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Law naming such Loan Party as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
"OFAC" means the Office of Foreign Assets Control of the United States Department of the Treasury.
"OID" means the original issue discount of 0.50% (50 basis points) applicable to the initial Term Loans, resulting in an issue price of 99.50% of the aggregate principal amount. The aggregate OID is $7,000,000.
"Other Taxes" means all present or future stamp, court, documentary, intangible, recording, filing, or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement, or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).
"Pension Plan" means any "employee pension benefit plan" (as defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to the provisions of Title IV of ERISA or Section 412 of the IRC or Section 302 of ERISA and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Permitted Acquisition" means any Acquisition by the Borrower or any Restricted Subsidiary, provided that: (a) no Default or Event of Default shall exist or would result therefrom (tested at the time of execution of the definitive acquisition agreement in the case of a Limited Condition Transaction); (b) the business acquired shall be in a line of business related, complementary, or ancillary to the business of the Borrower and its Restricted Subsidiaries; (c) if the Person acquired is to become a Restricted Subsidiary but not a Loan Party, the aggregate consideration (including assumed Indebtedness) for all such acquisitions of non-Loan Party targets shall not exceed $[75,000,000] in the aggregate during the term; and (d) the Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating pro forma compliance with the Financial Covenant (if applicable) after giving effect to such Acquisition .
"Permitted Holders" means, collectively, (a) Granite Peak Capital Partners, LP, (b) any Affiliate of the Sponsor, (c) any fund, investment vehicle, or account managed, advised, or sub-advised by the Sponsor or any of its Affiliates (including Granite Peak Capital Fund IV, LP and GP Fund IV Co-Invest, LP), (d) any co-investor investing alongside a Permitted Holder pursuant to a co-investment or similar arrangement , (e) any Person who is a member of the management of the Borrower or any of its Restricted Subsidiaries on the Closing Date (or who becomes a member of management thereafter) , and (f) any "group" (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) that includes one or more Permitted Holders described in clauses (a) through (e) above, so long as no single Person or "group" that is not a Permitted Holder described in clauses (a) through (e) above beneficially owns a greater percentage of the total voting power of the Equity Interests of Holdings than is at that time beneficially owned by the Permitted Holders described in clauses (a) through (e).
"Permitted Indebtedness" has the meaning set forth in Section 7.01.
"Permitted Investments" has the meaning set forth in Section 7.06.