Common use of Financial Consultant Clause in Contracts

Financial Consultant. (a) The Loan Parties agree that, at all times from and after (x) in the event the Specified Event shall not have occurred on or prior to May 31, 2023 (or such later date agreed to in writing by the Administrative Agent in its sole discretion), June 1, 2023 and (y) otherwise, June 12, 2023 (or such later date agreed to in writing by the Administrative Agent in its sole discretion), the Loan Parties shall, at their sole cost and expense and after consulting with the Administrative Agent, retain a third party financial consultant (a “Financial Consultant”) to provide financial and business assistance to the Loan Parties during such period, which Financial Consultant shall be acceptable to the Administrative Agent in its sole discretion and shall have a scope of engagement of that is reasonably satisfactory to the Administrative Agent. If the Loan Parties cooperate with the Financial Consultant (including, without limitation, in connection with the preparation and/or review of Borrowing Base Certificates, Approved Budgets and Approved Budget Variance Reports) in a manner consistent with the role of the Borrower Consultant as required by Section 6.10(c) of the Credit Agreement, such retention of a Financial Consultant may be made in lieu of compliance with Section 6.10(c) (subject to such Financial Consultant acting in the same capacity (and with the same obligations) as the Borrower Consultant). (b) The terms and scope of the engagement of the Financial Consultant shall be acceptable to the Administrative Agent and, without limiting the foregoing, the engagement shall (i) permit the Financial Consultant to report directly to the board of managers or directors, as applicable, of each Loan Party, (ii) grant the Administrative Agent and the Lenders complete and unfettered access to the Financial Consultant and authorize the Financial Consultant to communicate directly with the Administrative Agent and the Lenders and to furnish the Administrative Agent and the Lenders with such information as the Administrative Agent and the Lenders may request (together with copies of all written materials provided to the board of managers or directors of each Loan Party by such Financial Consultant), and (iii) require that the Financial Consultant review and submit on behalf of the Loan Parties all financial information and other reports required to be delivered by the Loan Parties to the Administrative Agent and the Lenders under the terms of this Agreement and the other Loan Documents. (c) Without limiting the generality of the foregoing, each Loan Party (i) hereby authorizes the Administrative Agent (or its agents or advisors) to communicate directly with the Financial Consultant regarding any and all matters related to the Loan Parties, including, without limitation, all financial reports and projections developed, reviewed or verified by the Financial Consultant and all additional information, reports and statements requested by the Administrative Agent or any Lender, and (ii) hereby authorizes and directs the Financial Consultant to provide the Administrative Agent with copies of reports and other information or materials prepared or reviewed by the Financial Consultant as the Administrative Agent or any Lender may request; provided, that none of the Loan Parties or Financial Consultant will be required to disclose any document, information or other matter (x) in respect of which disclosure to the Administrative Agent or any Lender (or their respective agent or representatives) is prohibited by Law or any binding agreement entered into with third parties that are not Affiliates of the Borrowers (and only so long as such confidentiality obligations were not incurred to avoid disclosure pursuant to this section) or (y) that is, upon the reasonable advice of the Borrowers’ counsel, subject to attorney-client or similar privilege or constitutes attorney work product.” (f) Section 7.16 of the Existing Credit Agreement is hereby amended by deleting such Section in its entirety and inserting the following in lieu thereof:

Financial Consultant. Each Loan Party hereby acknowledges and agrees that, if (a) The Loan Parties agree that, the amount equal to the ABL Excess Availability at all times from and after (x) in any time minus the event amount of the Specified Event shall not have occurred on or prior to May 31, 2023 (or such later date agreed to in writing by the Administrative Agent in its sole discretion), June 1, 2023 and (y) otherwise, June 12, 2023 (or such later date agreed to in writing by the Administrative Agent in its sole discretion), past due payables of the Loan Parties shallat such time (other than during the months of September, October and November) is less than twenty percent (20.0%) of the ABL Maximum Credit Amount (without giving effect to the Term Loan Push-Down Reserve), or (b) during the months of September, October or November of any year, if the amount equal to the ABL Excess Availability at their sole cost any time during such months minus the amount of the past due payables of the Loan Parties at such time is less than seventeen and expense and after consulting with one-half percent (17.5%) of the ABL Maximum Credit Amount (without giving effect to the Term Loan Push-Down Reserve)), without limitation of any other rights of the Administrative Agent, retain the Administrative Agent may, in its Permitted Discretion, at the cost of the Loan Parties, upon five (5) Business Days’ prior written notice to Borrower Representative, engage a third party financial consultant (a “Financial Consultant”) to provide financial and business assistance consultant, subject to the Loan Parties during such periodterms below, which Financial Consultant shall be acceptable to the Administrative Agent in its sole discretion Permitted Discretion (the “Financial Consultant”), to perform an independent business, financial and shall have a scope of engagement of that is reasonably satisfactory to the Administrative Agent. If the Loan Parties cooperate with the Financial Consultant (including, without limitation, in connection with the preparation and/or operational review of Borrowing Base Certificatesthe Company, Approved Budgets and Approved Budget Variance Reports) in a manner consistent with the role of the Borrower Consultant as required by Section 6.10(c) of the Credit Agreement, such retention of a Financial Consultant may be made in lieu of compliance with Section 6.10(c) (subject to such Financial Consultant acting in the same capacity (and with the same obligations) as the Borrower Consultant). (b) The terms and scope of the engagement of the Financial Consultant shall be acceptable to the Administrative Agent and, without limiting the foregoing, the engagement shall (i) permit the Financial Consultant to report directly to the board of managers or directors, as applicable, of each Loan Party, (ii) grant the Administrative Agent and the Lenders complete and unfettered access to the Financial Consultant and authorize the Financial Consultant to communicate directly with the Administrative Agent and the Lenders and to furnish the Administrative Agent and the Lenders with such information as the Administrative Agent and the Lenders may request (together with copies of all written materials provided to the board of managers or directors of each Loan Party by such Financial Consultant), and (iii) require that the Financial Consultant review and submit on behalf of the Loan Parties all financial information and other reports required to be delivered by the Loan Parties to the Administrative Agent and the Lenders under the terms of this Agreement and the other Loan Documents. (c) Without limiting the generality of the foregoing, each Loan Party (i) hereby authorizes the Administrative Agent (or its agents or advisors) to communicate directly with the Financial Consultant regarding any and all matters related to the Loan Parties, includingand their Subsidiaries, without limitation, all financial reports and projections developed, reviewed or verified by the Financial Consultant and all to conduct any additional information, reports and statements analysis as reasonably requested by the Administrative Agent or any Lenderfrom time to time, provided, that, to the extent that the Administrative Agent may have received such reviews and (ii) hereby authorizes and directs analysis from a satisfactory third party financial consultant engaged by ABL Agent in accordance with its rights under Section 5.17 of the ABL Credit Agreement of the 2024 fiscal year projections provided to the Administrative Agent prior to the Closing Date, the Administrative Agent shall not engage the Financial Consultant to provide conduct the same reviews or analysis with respect thereto. For purposes of this Section 5.17, the Administrative Agent with copies shall first seek to engage Alix Partners as the Financial Consultant (which engagement shall be subject to receipt of reports all applicable conflict waivers and other terms mutually acceptable to Alix Partners and the Administrative Agent). In the event that for any reason Alix Partners is not engaged (or it is not possible to engage Alix Partners in a timely manner under the circumstances in the reasonable determination of the Administrative Agent), the Administrative Agent may select another Financial Consultant. The Loan Parties acknowledge that the 7860103.21 Financial Consultant does not have any authority to bind the Administrative Agent or any other Secured Party or any counsel to any Secured Party to any agreement with any Loan Party, to make any representations or warranties on behalf of any Secured Party or any counsel to any Secured Party, or otherwise to act on behalf of any Secured Party or any counsel to any Secured Party; and that the Financial Consultant may share with the Secured Parties and the Secured Parties’ counsel and other advisors any information or materials prepared or reviewed obtained by the Financial Consultant during the course of the discharge of its engagement concerning the Loan Parties, their financial condition, business, prospects, financial forecasts, or the Collateral. Each Loan Party agrees to provide the Financial Consultant with such information concerning such Loan Party, its financial condition, business prospects, forecasts, assets and liabilities as the Financial Consultant may reasonably request. Each Loan Party acknowledges and agrees that neither any Secured Party nor any counsel to any Secured Party will have any liability for any wrongful acts of the Financial Consultant. Without limitation of any provisions of Section 5.07, the Loan Parties hereby acknowledge and agree that the Financial Consultant may communicate directly with the Loan Parties’ consultants and advisors, if any, regarding any matters pertaining to the Loan Parties’ business and financial condition, and that such consultants and advisors are authorized to provide the Financial Consultant with copies of all reports, projections, presentations, and other materials relating to the foregoing. The fees of a Financial Consultant engaged by the Administrative Agent pursuant to this Section 5.17 shall be reasonable and customary for the scope and nature of the engagement and at any time that the ABL Excess Availability is greater than thirty-five percent (35.0%) of the ABL Maximum Credit Amount (without giving effect to the Term Loan Push-Down Reserve) for any sixty (60) consecutive day period and no Event of Default exists or has occurred and is continuing to the extent that the fees of such Financial Consultant exceed the amounts reasonably projected by such Financial Consultant in good faith for such period based on its customary fees and charges for similar engagements, the Company shall not be obligated to reimburse the Administrative Agent for such fees, so long as the Loan Parties provide all information required by such Financial Consultant in a prompt, timely and organized manner (and including that such Financial Consultant is not required to review more than one 13-week cash flow for any 13-week period) and cause any financial consultant engaged by a Loan Party to do the same. For the avoidance of doubt, nothing contained herein shall limit any of the rights of the Administrative Agent or any Lender may request; provided, that none on or after an Event of the Loan Parties Default exists or Financial Consultant will be required to disclose any document, information or other matter (x) in respect of which disclosure to the Administrative Agent or any Lender (or their respective agent or representatives) has occurred and is prohibited by Law or any binding agreement entered into with third parties that are not Affiliates of the Borrowers (and only so long as such confidentiality obligations were not incurred to avoid disclosure pursuant to this section) or (y) that is, upon the reasonable advice of the Borrowers’ counsel, subject to attorney-client or similar privilege or constitutes attorney work productcontinuing.” (f) Section 7.16 of the Existing Credit Agreement is hereby amended by deleting such Section in its entirety and inserting the following in lieu thereof:

Financial Consultant. Each Loan Party hereby acknowledges and agrees that, if (a) The Loan Parties agree that, the amount equal to the ABL Excess Availability at all times from and after (x) in any time minus the event amount of the Specified Event shall not have occurred on or prior to May 31, 2023 (or such later date agreed to in writing by the Administrative Agent in its sole discretion), June 1, 2023 and (y) otherwise, June 12, 2023 (or such later date agreed to in writing by the Administrative Agent in its sole discretion), past due payables of the Loan Parties shallat such time (other than during the months of September, October and November) is less than twenty percent (20.0%) of the ABL Maximum Credit Amount (without giving effect to the Term Loan Push-Down Reserve), or (b) during the months of September, October or November of any year, if the amount equal to the ABL Excess Availability at their sole cost any time during such months minus the amount of the past due payables of the Loan Parties at such time is less than seventeen and expense and after consulting with one-half percent (17.5%) of the ABL Maximum Credit Amount (without giving effect to the Term Loan Push-Down Reserve)), without limitation of any other rights of the Administrative Agent, retain the Administrative Agent may, in its Permitted Discretion, at the cost of the Loan Parties, upon five (5) Business Days’ prior written notice to Borrower Representative, engage a third party financial consultant (a “Financial Consultant”) to provide financial and business assistance consultant, subject to the Loan Parties during such periodterms below, which Financial Consultant shall be acceptable to the Administrative Agent in its sole discretion Permitted Discretion (the “Financial Consultant”), to perform an independent business, financial and shall have a scope of engagement of that is reasonably satisfactory to the Administrative Agent. If the Loan Parties cooperate with the Financial Consultant (including, without limitation, in connection with the preparation and/or operational review of Borrowing Base Certificatesthe Company, Approved Budgets and Approved Budget Variance Reports) in a manner consistent with the role of the Borrower Consultant as required by Section 6.10(c) of the Credit Agreement, such retention of a Financial Consultant may be made in lieu of compliance with Section 6.10(c) (subject to such Financial Consultant acting in the same capacity (and with the same obligations) as the Borrower Consultant). (b) The terms and scope of the engagement of the Financial Consultant shall be acceptable to the Administrative Agent and, without limiting the foregoing, the engagement shall (i) permit the Financial Consultant to report directly to the board of managers or directors, as applicable, of each Loan Party, (ii) grant the Administrative Agent and the Lenders complete and unfettered access to the Financial Consultant and authorize the Financial Consultant to communicate directly with the Administrative Agent and the Lenders and to furnish the Administrative Agent and the Lenders with such information as the Administrative Agent and the Lenders may request (together with copies of all written materials provided to the board of managers or directors of each Loan Party by such Financial Consultant), and (iii) require that the Financial Consultant review and submit on behalf of the Loan Parties all financial information and other reports required to be delivered by the Loan Parties to the Administrative Agent and the Lenders under the terms of this Agreement and the other Loan Documents. (c) Without limiting the generality of the foregoing, each Loan Party (i) hereby authorizes the Administrative Agent (or its agents or advisors) to communicate directly with the Financial Consultant regarding any and all matters related to the Loan Parties, includingand their Subsidiaries, without limitation, all financial reports and projections developed, reviewed or verified by the Financial Consultant and all to conduct any additional information, reports and statements analysis as reasonably requested by the Administrative Agent or any Lenderfrom time to time, provided, that, to the extent that the Administrative Agent may have received such reviews and (ii) hereby authorizes and directs analysis from a satisfactory third party financial consultant engaged by ABL Agent in accordance with its rights under Section 5.17 of the ABL Credit Agreement of the 2024 fiscal year projections provided to the Administrative Agent prior to the Closing Date, the Administrative Agent shall not engage the Financial Consultant to provide conduct the same reviews or analysis with respect thereto. For purposes of this Section 5.17, the Administrative Agent with copies of reports and other information or materials prepared or reviewed by shall first seek to engage Alix Partners as the Financial Consultant as (which engagement shall be subject to receipt of all applicable conflict waivers and other terms mutually acceptable to Alix Partners and the Administrative Agent). In the event that for any reason Alix Partners is not engaged (or it is not possible to engage Alix Partners in a timely manner under the circumstances in the reasonable determination of the Administrative Agent), the Administrative Agent may select another Financial Consultant. The Loan Parties acknowledge that the Financial Consultant does not have any authority to bind the Administrative Agent or any Lender other Secured Party or any counsel to any Secured Party to any agreement with any Loan Party, to make any representations or warranties on behalf of any Secured Party or any counsel to any Secured Party, or otherwise to act on behalf of any Secured Party or any counsel to any Secured Party; and that the Financial Consultant may request; provided, that none share with the Secured Parties and the Secured Parties’ counsel and other advisors any information obtained by the Financial Consultant during the course of the Loan Parties or Financial Consultant will be required to disclose any document, information or other matter (x) in respect discharge of which disclosure to the Administrative Agent or any Lender (or their respective agent or representatives) is prohibited by Law or any binding agreement entered into with third parties that are not Affiliates of the Borrowers (and only so long as such confidentiality obligations were not incurred to avoid disclosure pursuant to this section) or (y) that is, upon the reasonable advice of the Borrowers’ counsel, subject to attorney-client or similar privilege or constitutes attorney work product.” (f) Section 7.16 of the Existing Credit Agreement is hereby amended by deleting such Section in its entirety and inserting the following in lieu thereof:its

Financial Consultant. (a) The Loan Parties agree that, at all times from and after (x) in the event the Specified Event shall not have occurred on or prior to May 31, 2023 (or such later date agreed to in writing by the Administrative First Lien Agent in its sole discretion), June 1, 2023 and (y) otherwise, June 12, 2023 (or such later date agreed to in writing by the Administrative First Lien Agent in its sole discretion), the Loan Parties shall, at their sole cost and expense and after consulting with the Administrative First Lien Agent, retain a third party financial consultant (a “Financial Consultant”) to provide financial and business assistance to the Loan Parties during such period, which Financial Consultant shall be acceptable to the Administrative First Lien Agent in its sole discretion and shall have a scope of engagement of that is reasonably satisfactory to the Administrative First Lien Agent. If the Loan Parties cooperate with the Financial Consultant (including, without limitation, in connection with the preparation and/or review of Borrowing Base CertificatesCertificates (as defined in the First Lien Credit Agreement), Approved Budgets and Approved Budget Variance Reports) in a manner consistent with the role of the Borrower Consultant as required by Section 6.10(c6.10(b) of the Credit Agreement, such retention of a Financial Consultant may be made in lieu of compliance with Section 6.10(c6.10(b) (subject to such Financial Consultant acting in the same capacity (and with the same obligations) as the Borrower Consultant). (b) The terms and scope of the engagement of the Financial Consultant shall be acceptable to the Administrative First Lien Agent and, without limiting the foregoing, the engagement shall (i) permit the Financial Consultant to report directly to the board of managers or directors, as applicable, of each Loan Party, (ii) grant the Administrative Agent and the Lenders complete and unfettered access to the Financial Consultant and authorize the Financial Consultant to communicate directly with the Administrative Agent and the Lenders and to furnish the Administrative Agent and the Lenders with such information as the Administrative Agent and the Lenders may request (together with copies of all written materials provided to the board of managers or directors of each Loan Party by such Financial Consultant), and (iii) require that the Financial Consultant review and submit on behalf of the Loan Parties all financial information and other reports required to be delivered by the Loan Parties to the Administrative Agent and the Lenders under the terms of this Agreement and the other Loan Documents. (c) Without limiting the generality of the foregoing, each Loan Party (i) hereby authorizes the Administrative Agent (or its agents or advisors) to communicate directly with the Financial Consultant regarding any and all matters related to the Loan Parties, including, without limitation, all financial reports and projections developed, reviewed or verified by the Financial Consultant and all additional information, reports and statements requested by the Administrative Agent or any Lender, and (ii) hereby authorizes and directs the Financial Consultant to provide the Administrative Agent with copies of reports and other information or materials prepared or reviewed by the Financial Consultant as the Administrative Agent or any Lender may request; provided, that none of the Loan Parties or Financial Consultant will be required to disclose any document, information or other matter (x) in respect of which disclosure to the Administrative Agent or any Lender (or their respective agent or representatives) is prohibited by Law or any binding agreement entered into with third parties that are not Affiliates of the Borrowers Loan Parties (and only so long as such confidentiality obligations were not incurred to avoid disclosure pursuant to this section) or (y) that is, upon the reasonable advice of the BorrowersLoan Parties’ counsel, subject to attorney-client or similar privilege or constitutes attorney work product.” (d) Any waiver by the First Lien Agent of any provisions set forth in Section 6.20 of the First Lien Credit Agreement shall be deemed a waiver of such corresponding provisions in this Section 6.24. (f) Section 7.16 of the Existing Credit Agreement is hereby amended by deleting such Section in its entirety and inserting the following in lieu thereof: