AMENDMENT NO. 4 TO THE AMENDED AND RESTATED MANAGEMENT AGREEMENT AND CONSENT TO AMENDMENT NO. 2 TO CANADIAN MANAGEMENT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 4 TO THE AMENDED AND RESTATED MANAGEMENT AGREEMENT AND CONSENT TO AMENDMENT NO. 2 TO CANADIAN MANAGEMENT AGREEMENT
THIS AMENDMENT NO. 4 TO THE AMENDED AND RESTATED MANAGEMENT AGREEMENT AND CONSENT TO AMENDMENT NO. 2 TO CANADIAN MANAGEMENT AGREEMENT, dated as of September 29, 2021 (this “Amendment”), by and among Driven Brands Funding, LLC, a Delaware limited liability company (the “Issuer”), Driven Product Sourcing LLC, a Delaware limited liability company, Driven Systems LLC, a Delaware limited liability company, 1-800-Radiator Product Sourcing LLC, a Delaware limited liability company, 1-800-Radiator Franchisor SPV LLC, a Delaware limited liability company, Meineke Franchisor SPV LLC, a Delaware limited liability company, Maaco Franchisor SPV LLC, a Delaware limited liability company, Econo Lube Franchisor SPV LLC, a Delaware limited liability company, Drive N Style Franchisor SPV LLC, a Delaware limited liability company, Merlin Franchisor SPV LLC, a Delaware limited liability company, CARSTAR Franchisor SPV LLC, a Delaware limited liability company, Take 5 Franchisor SPV LLC, a Delaware limited liability company, Take 5 Properties SPV LLC, a Delaware limited liability company, Driven Funding Holdco, LLC, a Delaware limited liability company, ABRA Franchisor SPV LLC, a Delaware limited liability company, FUSA Franchisor SPV LLC, a Delaware limited liability company, and FUSA Properties SPV LLC, a Delaware limited liability company (collectively, each, a “Securitization Entity,” and together the “Securitization Entities”); Take 5 LLC, a North Carolina limited liability company, Take 5 Oil Change, LLC, a Delaware limited liability company (and together with Take 5 LLC and the Securitization Entities, the “Service Recipients”); Driven Brands, Inc., a Delaware corporation, as manager (in such capacity, together with its successors and assigns, the “U.S. Manager”), and Citibank, N.A., as Trustee (in such capacity, together with its successors, the “Trustee”). All capitalized terms not defined herein shall have the meaning ascribed to them in the U.S. Management Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Issuer, Driven Brands Canada Funding Corporation, a Canadian corporation (the “Canadian Co-Issuer” and together with the Issuer, the “Co-Issuers”), the Trustee and Citibank, N.A. as Securities Intermediary have entered into an Amended and Restated Base Indenture dated as of April 24, 2018 (as amended by Amendment No. 1 thereto, entered into on March 19, 2019, Amendment No. 2 thereto, entered into on June 15, 2019, Amendment No. 3 thereto, entered into on September 17, 2019, Amendment No. 4 thereto, entered into on July 6, 2020, Amendment No. 5 thereto, entered into on December 14, 2020, Amendment No. 6 thereto, entered into on March 30, 2021, Amendment No. 7 thereto, entered into on March 30, 2021 and Amendment No. 8 thereto, dated as of the date hereof, and as the same may be further amended, supplemented, or otherwise modified from time to time in accordance with the terms thereof, and together with the Series Supplements thereto and any amendments to such Series Supplements, the “Indenture”), pursuant to which Indenture the Co-Issuers have issued the Series 2018-1 Notes, the Series 2019-1 Notes, the Series 2019-2 Notes, the Series 2019-3 Notes, the Series 2020-1 Notes and the Series 2020-2 Notes, will issue the Series 2021-1 Notes, and may issue additional series of notes from time to time (collectively, the “Notes”) on the terms described therein;
WHEREAS, in connection with the Indenture, the Issuer, the other Service Recipients party thereto from time to time, the U.S. Manager, the Sub-managers party thereto from time to time and the Trustee have entered into the Amended and Restated Management Agreement, dated as of April 24, 2018 (as amended by the Joinder and Amendment to the Amended and Restated Management Agreement, entered into on July 6, 2020, as amended by Amendment No. 3 to the Amended and Restated Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement, entered into on March 30, 2021, and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “U.S. Management Agreement”);
WHEREAS, Section 8.3(a) of the U.S. Management Agreement provides, among other things, for the amendment of the U.S. Management Agreement with the consent of the Service Recipients, the U.S. Manager and the Trustee (acting at the direction of the Control Party), and Section 8.7(d) of the Base Indenture provides, among other things, for the amendment of the U.S. Management Agreement with the consent of the Control Party, subject to the terms of the U.S. Management Agreement;
WHEREAS, the Service Recipients and the U.S. Manager desire to amend the U.S. Management Agreement as set forth herein (the “U.S. Management Agreement Amendment”);
WHEREAS, in connection with the Indenture, the Canadian Co-Issuer, the other Service Recipients (as defined in the Canadian Management Agreement (as defined below), the “Canadian Service Recipients”) party thereto from time to time, Driven Brands Canada Shared Services Inc., a Canadian corporation, as manager (in such capacity, together with its successors and assigns, the “Canadian Manager”), the Sub-managers (as defined in the Canadian Management Agreement) party thereto from time to time and the Trustee have entered into the Canadian Management Agreement, dated as of July 6, 2020 (as amended by Amendment No. 3 to the Amended and Restated Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement, entered into on March 30, 2021, and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Canadian Management Agreement”);
WHEREAS, Section 8.3(a) of the Canadian Management Agreement provides, among other things, for the amendment of the Canadian Management Agreement with the consent of the Canadian Service Recipients, the Canadian Manager and the Trustee (acting at the direction of the Control Party), and Section 8.7(d) of the Base Indenture provides, among other things, for the amendment of the Canadian Management Agreement with the consent of the Control Party, subject to the terms of the Canadian Management Agreement;
WHEREAS, the Canadian Service Recipients and the Canadian Manager desire to amend the Canadian Management Agreement in a manner substantially identical to the U.S. Management Agreement Amendment, as set forth in Exhibit A hereto (the “Conforming Canadian Management Agreement Amendment”); and
WHEREAS, the Control Party (acting at the direction of the Controlling Class Representative) has consented to this Amendment and the Conforming Canadian Management Agreement Amendment and has directed the Trustee to enter into this Amendment.
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NOW, THEREFORE, IT IS AGREED:
1. Amendments.
(a) Definitions.
| (i) | “2021 Springing Amendments Implementation Date”. Section 1.1 of the U.S. Management Agreement is hereby amended by adding the following definition of “2021 Springing Amendments Implementation Date” in appropriate alphabetical order. |
“2021 Springing Amendments Implementation Date” means the earlier of the date upon which (i) all Holders of the Series 2018-1 Notes, Series 2019-1 Notes, Series 2019-2 Notes, Series 2019-3 Notes, Series 2020-1 Notes and Series 2020-2 Notes have been repaid (and the commitments under the Series 2019-3 Notes have been terminated) or (ii) all Holders of the Series 2018-1 Notes, Series 2019-1 Notes, Series 2019-2 Notes, Series 2019-3 Notes, Series 2020-1 Notes and Series 2020-2 Notes, to the extent any such Series is Outstanding at such date, have consented to the applicable amendment.”
| (ii) | “Change in Management”. The definition of “Change in Management” in Section 1.1 of the U.S. Management Agreement is hereby amended by replacing the word “Parent” with the word “DBI”. |
| (iii) | “Change of Control”. The definition of “Change of Control” in Section 1.1 of the U.S. Management Agreement is hereby amended and restated in its entirety as set forth below. |
““Change of Control”: means an event that will occur if as a result of any disposition or other event any combination of Permitted Holders in the aggregate fail to have the power, directly or indirectly, to vote or direct the voting of Equity Interests representing at least a majority of the ordinary voting power for the election of directors of DBI; provided that the occurrence of the foregoing event will not be deemed a Change of Control if, (i) prior to a Qualified IPO, (A) any combination of Permitted Holders in the aggregate otherwise have the right, directly or indirectly, to designate a majority of the board of directors of DBI at such time or (B) any combination of Permitted Holders in the aggregate own, directly or indirectly, a majority of the ordinary Voting Equity Interests of DBI at such time, (ii) upon or after a Qualified IPO, (A) no Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the 1934 Act as in effect on the Series 2016-1 Closing Date), other than any combination of the Permitted Holders, will have
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acquired beneficial ownership of more than the greater of (x) 35% on a fully diluted basis of the Voting Equity Interests of DBI and (y) the percentage owned, directly or indirectly, in the aggregate by the Permitted Holders on a fully diluted basis of the Voting Equity Interests of DBI and (B) during each period of twelve (12) consecutive months thereafter, a majority of the seats (other than vacant seats) on the board of directors of DBI will be occupied by Persons who were either (1) nominated by the board of directors of DBI or a Permitted Holder, (2) appointed by directors so nominated or (3) appointed by a Permitted Holder or (iii) in connection with an equity transfer, merger, consolidation or other combination transaction of DBI or one or more of its direct or indirect holding companies with or by another entity or entities, (A) any combination of Permitted Holders in the aggregate otherwise have the right, directly or indirectly, to designate or elect a percentage of the Board of Directors of DBI (or, if DBI is not a surviving entity as a result of such merger, such surviving entity) after giving effect to such transaction that is not less than the Permitted Holders’ ratable interest in DBI immediately before giving effect thereto or (B) any combination of Permitted Holders in the aggregate beneficially own, directly or indirectly, a percentage of the ordinary Voting Equity Interests of DBI (or, if DBI is not a surviving entity as a result of such merger, such surviving entity) after giving effect to such transaction that is not less than all Permitted Holders’ ratable interest in DBI immediately before giving effect thereto.”
| (iv) | “DBH”. Section 1.1 of the U.S. Management Agreement is hereby amended by adding the following definition of “DBH” in appropriate alphabetical order. |
““DBH”: means Driven Brands Holdings Inc., a Delaware corporation.”
| (v) | “DBI”. Section 1.1 of the U.S. Management Agreement is hereby amended by adding the following definition of “DBI” in appropriate alphabetical order. |
““DBI”: means Driven Brands, Inc., a Delaware corporation.”
| (vi) | “Future Brand”. The definition of “Future Brand” in Section 1.1 of the U.S. Management Agreement is hereby amended by replacing the word “Parent” with the word “DBI”. |
| (vii) | “IP Services”. The definition of “IP Services” in Section 1.1 of the U.S. Management Agreement is hereby amended by (A) deleting the word “and” immediately following clause (l) thereof, (B) replacing the period “.” at the end of clause (m) thereof with “; and” and (C) adding the following clause (n) at the end thereof. |
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“(n) maintaining, registering, updating or taking any such actions the applicable Manager deems appropriate to enable the applicable SPV Franchising Entity to use any domain names, including managing and holding such domain names in the name of such Manager in the WhoIS database.”
| (viii) | “Management Group”. The definition of “Management Group” in Section 1.1 of the U.S. Management Agreement is hereby amended by replacing the word “Parent” with the word “DBI”. |
| (ix) | “Parent”. Section 1.1 of the U.S. Management Agreement is hereby amended by adding the following definition of “Parent” in appropriate alphabetical order and deleting the definition of “Parent” in the introductory paragraph of the U.S. Management Agreement in its entirety. |
““Parent”: means Driven Holdings, LLC, a Delaware limited liability company.”
| (x) | “Parent Entity”. Section 1.1 of the U.S. Management Agreement is hereby amended by deleting the definition of “Parent Entity” in its entirety and Section 2.13 of the U.S. Management Agreement is hereby amended by deleting the definition of “Parent Entity” in its entirety and replacing its usage in Section 2.13 of the U.S. Management Agreement with the term “Driven Brands”. |
| (xi) | “Permitted Holders”. The definition of “Permitted Holders” in Section 1.1 of the U.S. Management Agreement is hereby amended and restated in its entirety as set forth below. |
““Permitted Holders”: means, at any time, each of (i) (a) the Sponsor and its subsidiaries or other affiliates from time to time, including any funds managed or advised by the Sponsor, and (b) Xxxxx Capital Management, LLC and any funds directly or indirectly managed or advised by Xxxxx Capital Management, LLC, together with their subsidiaries or other affiliates from time to time,(ii) any member of the Management Group, (iii) any Person that has no material assets other than the capital stock of DBI and, directly or indirectly, holds or acquires 100% of the total voting power of the Voting Equity Interests of DBI, and of which no other Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the 1934 Act, or any successor provision), other than any of the other Permitted Holders specified in clauses (i) and (ii) above, holds more than 50% of the total voting power of the Voting Equity Interests thereof and
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(iv) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the 1934 Act, or any successor provision) the members of which include any of the Permitted Holders specified in clauses (i) and (ii) above and that, directly or indirectly, hold or acquire beneficial ownership of the Voting Equity Interests of DBI (a “Permitted Holder Group” ), so long as (1) each member of the Permitted Holder Group has voting rights proportional to the percentage of ownership interests held or acquired by such member and (2) no Person or other “group” (other than Permitted Holders specified in clauses (i) and (ii) above) beneficially owns more than 50% on a fully diluted basis of the Voting Equity Interests held by the Permitted Holder Group.”
| (xii) | “Qualified IPO”. The definition of “Qualified IPO” in Section 1.1 of the U.S. Management Agreement is hereby amended by replacing the word “Parent” with the word “DBI”. |
| (xiii) | “Tax Payment Deficiency”. The definition of “Tax Payment Deficiency” in Section 1.1 of the U.S. Management Agreement is hereby amended by replacing the word “Parent” with the word “DBI”. |
(b) Amendment to Section 2.2. Section 2.2(d) of the U.S.
Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same
manner as the following example: bold and double-underlined text) as set forth below.
“(d) Advertising Funds. The Manager shall maintain nine accounts, each designated as an “Advertising Fund
Account” for advertising payments due to the applicable Service Recipients in respect of the Meineke Brand, Maaco Brand, Econo Lube Brand, Merlin Brand,
1-800-Radiator Brand, Carstar Brand, Take 5 Brand, ABRA Brand and Fix Auto Brand, and may in the future create new Advertising Fund Accounts from time to time.
Advertising Fees will be paid directly, or transferred by the Manager from the U.S. Concentration Account to the applicable Advertising Fund Account (other than any Maaco Net Advertising Commissions in the United States, which will constitute
Collections); provided that Advertising Fees related to national and/or local cooperative advertising funds (the “Advertising Co-op Funds”) administered by an unaffiliated third party
designee of Parent DBI (which shall include, without limitation, local advertising cooperatives and cooperatives established by international franchise associations)
will be paid directly to the applicable Advertising Co-op Fund and will not be deposited into the applicable Advertising Fund Accounts. The Manager will not make or permit or cause any other Person to make or
permit any borrowings to be made or liens to be levied against the applicable Advertising Fund Accounts or the funds therein, except in connection with reimbursements for advances made by the Manager to fund deficits therein. The Manager will apply
the amount on deposit in the
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applicable Advertising Fund Accounts, and in respect of the Advertising Co-op Funds shall use commercially reasonable efforts to ensure that the amounts on deposit are applied, solely to cover the costs and expenses (including, in each case, costs and expenses incurred prior to the Series 2018-1 Closing Date) associated with the administration of such account and costs and expenses related to the marketing and advertising programs of the SPV Franchising Entities, including reimbursement for advances. The Manager may make advances to fund deficits in the applicable Advertising Fund Accounts or the Advertising Co-op Funds from time to time to the extent that it reasonably expects to be reimbursed for such advances from the proceeds of future Advertising Fees, it being agreed that any such advances will not constitute Manager Advances. Such advances may be reimbursed from future Advertising Fees payable by Franchisees or from future deposits in the applicable Advertising Fund Accounts. The Manager, acting on behalf of each of the Securitization Entities, may in accordance with the Managing Standard and the terms of the applicable franchise agreement with Franchisees and this Agreement, as applicable, increase or reduce the Advertising Fees required to be paid by the Franchisees pursuant to the terms of the applicable franchise agreements.”
(c) Amendment to
Section 3.1. Section 3.1(b) of the U.S. Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken
text) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth below.
“(b) Delivery of Financial Statements. The Manager shall provide the financial statements of the Driven
Brands, and each of the Service Recipients, and DBH, as required under Section 4.1(f)
and (g), (h) and (i) of the Base Indenture; provided that to the extent of any material difference in
reporting between DBH and Parent, the Manager shall furnish a reconciliation in reporting between DBH and Parent.”
(d) Amendment to Section 5.4. Section 5.4 of the U.S. Management
Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the
following example: bold and double-underlined text) as set forth below.
““Section 5.4 Specified Non-Securitization Debt Cap.
Following the Series 2015-1 Series 0000-0 Xxxxxxx Xxxx, Xxxxxx Brands shall
not and shall not permit the Non-Securitization Entities to Parent and the Parent Consolidated Subsidiaries (other than the
Securitization Entities or any other securitization entity or similar entity under any Parent Permitted Securitization Financing) shall not incur any additional Indebtedness for borrowed money (“Specified Non-Securitization Debt”) if, after giving effect to such incurrence (and any repayment of Specified Non-Securitization Debt on such date), such incurrence would
cause the aggregate Outstanding Principal Amount of the Specified Non-Securitization
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Debt of the Non-Securitization Entities as of such date to exceed $50,000,000 (the “Driven Brands Specified Non-Securitization Debt Cap”); provided that the Driven Brands Specified Non-Securitization Debt Cap shall not be applicable to Specified Non-Securitization Debt (i) issued or incurred to refinance the Notes in whole, (ii) in excess of the Driven Brands Specified Non-Securitization Debt Cap if (a) the creditors (other than any creditor with respect to an aggregate amount of outstanding Indebtedness less than $50,000) under and with respect to such Indebtedness execute a non-disturbance agreement with the Trustee, as directed by the Manager and in a form reasonably satisfactory to the Servicer and the Trustee, that acknowledges the terms of the Securitization Transaction including the bankruptcy remote status of the Securitization Entities and their assets and (b) after giving pro forma effect to the incurrence of such Indebtedness (and any repayment of existing Indebtedness), the Driven Brands Leverage Ratio (as calculated without regard to any Indebtedness that is subject to the Driven Brands Specified Non-Securitization Debt Cap) is less than or equal to 7.00x, (iii) that is considered Indebtedness due solely to a change in accounting rules that takes effect subsequent to the Series 2015-1 Closing Date but that was not considered Indebtedness prior to such date, (iv) in respect of any obligation of any Non-Securitization Entity to reimburse any Co-Issuer for any draws under any one or more Letters of Credit, (v) in respect of intercompany notes among Non-Securitization Entities or (vi) with respect to any Letter of Credit that is 100% cash collateralized. A violation of the foregoing covenant will result in a Manager Termination Event and therefore a Rapid Amortization Event.”
(e) Amendment to Section 6.3(a).
Section 6.3(a) of the U.S. Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and
double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth below.
““Disentanglement. Following the delivery of a Termination Notice to the Manager pursuant to Section 6.1(a) or Section 6.2 above or notice of resignation of the Manager pursuant to Section 4.4(b), the Manager shall cooperate with the Back-Up Manager and the Control Party in connection with the implementation of the Transition Plan (as defined in the Back-Up Management Agreement) and the complete transition to a Successor Manager, without interruption or adverse impact on the provision of Services (the “Disentanglement”). The Manager shall cooperate fully with the Successor Manager and otherwise promptly take all actions required to assist in effecting a complete Disentanglement and shall follow any directions that may be provided by the Back-Up Manager and the Control Party. On and after the 2021 Springing Amendments Implementation Date, the Manager will use its commercially reasonable efforts to not materially reduce the existing staff and resources of the Manager devoted to or shared with the provision of the Services prior to the date of such Termination Notice and allow reasonable access to the Manager’s premises, systems and offices during the Disentanglement Period (such activities being referred to as “Continuity of Services”). The Manager shall provide all information and
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assistance regarding the terminated Services required for Disentanglement and, on and after the 2021 Springing Amendments Implementation Date, Continuity of Services, including data conversion and migration, interface specifications, and related professional services. All services relating to Disentanglement (“Disentanglement Services”), including all reasonable training for personnel of the Back-Up Manager, the Successor Manager or the Successor Manager’s designated alternate service provider in the performance of the Services, will be deemed a part of the Services to be performed by the Manager. So long as the Manager continues to provide the Services (whether or not the Manager has been terminated as the Manager) during the Disentanglement Period, the Manager will continue to be paid the Weekly Management Fee.”
(f) Amendment to Section 6.3(c). Section 6.3(c) of the U.S.
Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same
manner as the following example: bold and double-underlined text) as set forth below.
““(c) Duration of Obligations. The Manager’s obligation to provide Disentanglement Services will continue
during the period commencing on (a) the date that delivery of a Termination Notice is
delivered to the Manager or (b) the delivery of a resignation notice by either or both Managers and ending on the date on which the Successor Manager or the re-engaged Manager assumes all of the obligations of the Manager hereunder (the “Disentanglement Period”).”
(g) Amendment to Section 8.17. Section 8.17 of the U.S. Management
Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the
following example: bold and double-underlined text) as set forth below.
“Section 8.17 Securitization-Owned Locations. In the future, the Manager and its affiliates shall
contribute to the applicable Securitization Entities all future Securitization-Owned Locations in the United States for the Take 5 Brand or the Fix Auto Brand. In the future,
ParentDBI or its affiliates may, in their reasonable discretion, contribute one or more other Securitization-Owned Locations to the Securitization Entities or the
Securitization Entities may acquire one or more Securitization-Owned Locations. The Manager will perform all of the duties and obligations of the applicable Securitization Entities in connection with the operation and ownership of such
Securitization-Owned Locations, including, without limitation, collecting revenues generated by such Securitization-Owned Locations, maintaining appropriate levels of property and casualty insurance, and performing any other activities necessary or
desirable for the operation of such Securitization-Owned Locations, as required under the Transaction Documents. In the event a Securitization Entity acquires a Securitization-Owned Location, the Manager will provide written notice thereof to the
Trustee.”
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2. Effectiveness. This Amendment shall become effective when each of the signatories hereto has executed a counterpart hereof. Except as expressly set forth or contemplated in this Amendment, the terms and conditions of the U.S. Management Agreement shall remain in full force and effect and not be altered, amended or changed in any manner whatsoever, except by any further amendment to the U.S. Management Agreement made in accordance with the terms thereof, as amended by this Amendment.
3. Counterparts; Binding Effect. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment in electronic form (including by telecopy, pdf, or e-signature) shall be effective as delivery of a manually executed counterpart of this Amendment.
4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
5. Electronic Signatures and Transmission. For purposes of this Amendment, any reference to “written” or “in writing” means any form of written communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by Electronic Transmission. “Electronic Transmission” means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process. The Trustee is authorized to accept written instructions, directions, reports, notices or other communications delivered by Electronic Transmission and shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by Electronic Transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such Electronic Transmission, and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, directions, notices, reports or other communications or information, and the risk of interception and misuse by third parties (except to the extent such action results from gross negligence, willful misconduct or fraud by the Trustee). Any requirement in this Amendment that is to be signed or authenticated by “manual signature” or similar language shall not be deemed to prohibit signature to be by facsimile or electronic signature and shall not be deemed to prohibit delivery thereof by Electronic Transmission. Notwithstanding anything to the contrary in this Amendment, any and all communications (both text and attachments) by or from the Trustee that the Trustee in its sole discretion deems to contain confidential, proprietary and/or sensitive information and sent by Electronic Transmission will be encrypted. The recipient of the Electronic Transmission will be required to complete a one-time registration process.
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IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be duly executed and delivered as of the date first above written.
| DRIVEN BRANDS FUNDING, LLC, as Issuer | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| DRIVEN FUNDING HOLDCO, LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| DRIVEN PRODUCT SOURCING LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| DRIVEN SYSTEMS LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
[Signature Page to Amendment No. 4 to A&R Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement]
| 1-800-RADIATOR PRODUCT SOURCING LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| 1-800-RADIATOR FRANCHISOR SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| MEINEKE FRANCHISOR SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| MAACO FRANCHISOR SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| ECONO LUBE FRANCHISOR SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
[Signature Page to Amendment No. 4 to A&R Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement]
| DRIVE N STYLE FRANCHISOR SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| MERLIN FRANCHISOR SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| CARSTAR FRANCHISOR SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| TAKE 5 FRANCHISOR SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| TAKE 5 PROPERTIES SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
[Signature Page to Amendment No. 4 to A&R Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement]
| TAKE 5 LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| TAKE 5 OIL CHANGE, LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| ABRA FRANCHISOR SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| FUSA FRANCHISOR SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| FUSA PROPERTIES SPV LLC, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
[Signature Page to Amendment No. 4 to A&R Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement]
| DRIVEN BRANDS, INC., as U.S. Manager | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
[Signature Page to Amendment No. 4 to A&R Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement]
| CITIBANK, N.A., in its capacity as Trustee | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Senior Trust Officer | |
[Signature Page to Amendment No. 4 to A&R Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement]
CONSENT AND DIRECTION OF CONTROL PARTY:
Midland Loan Services, a division of PNC Bank, National Association, in its capacity as Control Party, with the consent and at the direction of the Controlling Class Representative (pursuant to Section 11.4(b) of the Base Indenture), (i) hereby consents to this Amendment to the U.S. Management Agreement and directs the Trustee to execute and deliver this Amendment and (ii) hereby consents to the Conforming Canadian Management Agreement Amendment and directs the Trustee to execute and deliver the Conforming Canadian Management Agreement Amendment.
| MIDLAND LOAN SERVICES, a division of PNC Bank, National Association, as Control Party | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
[Signature Page to Amendment No. 4 to A&R Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement]
CONSENT AND DIRECTION OF CONTROLLING CLASS REPRESENTATIVE:
Athene Annuity and Life Company, in its capacity as Controlling Class Representative, hereby consents to and directs the Control Party (pursuant to Section 11.4(b) of the Base Indenture) to consent to and to implement (i) this Amendment, including via the execution and delivery by the parties hereto and (ii) the Conforming Canadian Management Agreement Amendment, including via the execution and delivery by the parties thereto.
| ATHENE ANNUITY AND LIFE COMPANY, | ||
| as Controlling Class Representative | ||
| By: Apollo Insurance Solutions Group LP, its investment adviser | ||
| By: Apollo Capital Management, L.P., its sub-adviser | ||
| By: Apollo Capital Management GP, LLC, its General Partner | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxxxxx X. Xxxxx | |
| Title: | Vice President | |
[Signature Page to Amendment No. 4 to A&R Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement]
Exhibit A
AMENDMENT NO. 2 TO CANADIAN MANAGEMENT AGREEMENT
THIS AMENDMENT NO. 1 TO CANADIAN MANAGEMENT AGREEMENT, dated as of September 29, 2021 (this “Amendment”), by and among: DRIVEN BRANDS CANADA FUNDING CORPORATION, a Canadian corporation (the “Canadian Co-Issuer”), CARSTAR CANADA SPV GP CORPORATION, a Canadian corporation (“Canadian CARSTAR GP”), CARSTAR CANADA SPV LP, an Ontario limited partnership (“Canadian CARSTAR”), MAACO CANADA SPV GP CORPORATION, a Canadian corporation (“Canadian Maaco Franchisor GP”), MAACO CANADA SPV LP, an Ontario limited partnership (“Canadian Maaco Franchisor”), MEINEKE CANADA SPV GP CORPORATION, a Canadian corporation (“Canadian Meineke Franchisor GP”), MEINEKE CANADA SPV LP, an Ontario limited partnership (“Canadian Meineke Franchisor”), TAKE 5 CANADA SPV GP CORPORATION, a Canadian corporation (“Canadian Take 5 GP”), TAKE 5 CANADA SPV LP, an Ontario limited partnership (“Canadian Take 5”), GO GLASS FRANCHISOR SPV GP CORPORATION, a Canadian corporation (“Go Glass Franchisor GP”), GO GLASS FRANCHISOR SPV LP, an Ontario limited partnership (“Go Glass Franchisor”), STAR AUTO GLASS FRANCHISOR SPV GP CORPORATION, a Canadian corporation (“Star Auto Glass Franchisor GP”), STAR AUTO GLASS FRANCHISOR SPV LP, an Ontario limited partnership (“Star Auto Glass Franchisor” and, together with Canadian CARSTAR GP, Canadian CARSTAR, Canadian Maaco Franchisor GP, Canadian Maaco Franchisor, Canadian Meineke Franchisor GP, Canadian Meineke Franchisor, Canadian Take 5 GP, Canadian Take 5, Go Glass Franchisor GP, Go Glass Franchisor and Star Auto Glass Franchisor GP, the “Canadian SPV Franchising Entities”), DRIVEN CANADA FUNDING HOLDCO CORPORATION, a Canadian corporation (“Canadian Funding Holdco”); DRIVEN CANADA PRODUCT SOURCING GP CORPORATION, a Canadian corporation (“Driven Canada Product Sourcing GP”), DRIVEN CANADA PRODUCT SOURCING LP, an Ontario limited partnership (“Driven Canada Product Sourcing”), DRIVEN CANADA CLAIMS MANAGEMENT GP CORPORATION, a Canadian corporation (“Driven Canada Claims Management GP”), and DRIVEN CANADA CLAIMS MANAGEMENT LP, an Ontario limited partnership (“Driven Canada Claims Management” and, together with Canadian Funding Holdco, Driven Canada Product Sourcing GP, Driven Canada Product Sourcing, Driven Canada Claims Management GP and the Canadian SPV Franchising Entities, the “Guarantors” and together with the Canadian Co-Issuer, the “Canadian Securitization Entities” or the “Service Recipients”); Driven Brands Canada Shared Services Inc., a Canadian corporation, as manager (in such capacity, together with its successors and assigns, the “Canadian Manager”), and Citibank, N.A., as Trustee (in such capacity, together with its successors, the “Trustee”). All capitalized terms not defined herein shall have the meaning ascribed to them in the Canadian Management Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Canadian Co-Issuer, Driven Brands Funding, LLC, a Delaware limited liability company (the “Issuer” and together with the Canadian Co-Issuer, the “Co-Issuers”), the Trustee and Citibank, N.A. as Securities Intermediary have entered into an Amended and Restated Base Indenture dated as of April 24, 2018 (as amended by Amendment No. 1 thereto, entered into on March 19, 2019, Amendment No. 2 thereto, entered into on June 15, 2019, Amendment No. 3 thereto, entered into on September 17, 2019, Amendment No. 4 thereto, entered into on July 6, 2020, Amendment No. 5 thereto, entered into on December 14, 2020, Amendment
1
No. 6 thereto, entered into on March 30, 2021, Amendment No. 7 thereto, entered into on March 30, 2021 and Amendment No. 8 thereto, dated as of the date hereof, and as the same may be further amended, supplemented, or otherwise modified from time to time in accordance with the terms thereof, and together with the Series Supplements thereto and any amendments to such Series Supplements, the “Indenture”), pursuant to which Indenture the Co-Issuers have issued the Series 2018-1 Notes, the Series 2019-1 Notes, the Series 2019-2 Notes, the Series 2019-3 Notes, the Series 2020-1 Notes and the Series 2020-2 Notes, will issue the Series 2021-1 Notes, and may issue additional series of notes from time to time (collectively, the “Notes”) on the terms described therein;
WHEREAS, in connection with the Indenture, the Canadian Co-Issuer, the other Service Recipients party thereto from time to time, the Canadian Manager, the Sub-managers party thereto from time to time and the Trustee have entered into the Canadian Management Agreement, dated as of July 6, 2020 (as amended by Amendment No. 3 to the Amended and Restated Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement, entered into on March 30, 2021, and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Canadian Management Agreement”);
WHEREAS, Section 8.3(a) of the Canadian Management Agreement provides, among other things, for the amendment of the Canadian Management Agreement with the consent of the Service Recipients, the Canadian Manager and the Trustee (acting at the direction of the Control Party), and Section 8.7(d) of the Base Indenture provides, among other things, for the amendment of the Canadian Management Agreement with the consent of the Control Party, subject to the terms of the Canadian Management Agreement;
WHEREAS, in connection with the Indenture, the Issuer, the other Service Recipients (as defined in the U.S. Management Agreement (as defined below)) party thereto from time to time, Driven Brands, Inc., a Delaware corporation, as manager (in such capacity, together with its successors and assigns, the “U.S. Manager”), the Sub-managers (as defined in the U.S. Management Agreement) party thereto from time to time and the Trustee have entered into the Amended and Restated Management Agreement, dated as of April 24, 2018 (as amended by the Joinder and Amendment to the Amended and Restated Management Agreement, entered into on July 6, 2020, as amended by Amendment No. 3 to the Amended and Restated Management Agreement and Consent to Amendment No. 2 to Canadian Management Agreement, entered into on March 30, 2021, and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “U.S. Management Agreement”), which includes provisions substantially identical to the Canadian Management Agreement and which provisions of the U.S. Management Agreement have been amended on the date hereof in accordance with the terms thereof and the Base Indenture (the “U.S. Management Agreement Amendment”);
WHEREAS, the Service Recipients and the Canadian Manager desire to amend the Canadian Management Agreement in a manner substantially identical to the U.S. Management Agreement Amendment, as set forth herein (the “Canadian Management Agreement Amendment”); and
WHEREAS, in the U.S. Management Agreement Amendment, the Control Party (acting at the direction of the Controlling Class Representative) has consented to the Canadian Management Agreement Amendment and has directed the Trustee to enter into this Amendment.
NOW, THEREFORE, IT IS AGREED:
1. Amendments.
(a) Definitions.
| (i) | “Change in Management”. The definition of “Change in Management” in Section 1.1 of the Canadian Management Agreement is hereby amended by replacing the word “Parent” with the word “DBI”. |
| (ii) | “Change of Control”. The definition of “Change of Control” in Section 1.1 of the Canadian Management Agreement is hereby amended and restated in its entirety as set forth below. |
““Change of Control”: means an event that will occur if as a result of any disposition or other event any combination of Permitted Holders in the aggregate fail to have the power, directly or indirectly, to vote or direct the voting of Equity Interests representing at least a majority of the ordinary voting power for the election of directors of DBI; provided that the occurrence of the foregoing event will not be deemed a Change of Control if, (i) prior to a Qualified IPO, (A) any combination of Permitted Holders in the aggregate otherwise have the right, directly or indirectly, to designate a majority of the board of directors of DBI at such time or (B) any combination of Permitted Holders in the aggregate own, directly or indirectly, a majority of the ordinary Voting Equity Interests of DBI at such time, (ii) upon or after a Qualified IPO, (A) no Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the 1934 Act as in effect on the Series 2016-1 Closing Date), other than any combination of the Permitted Holders, will have acquired beneficial ownership of more than the greater of (x) 35% on a fully diluted basis of the Voting Equity Interests of DBI and (y) the percentage owned, directly or indirectly, in the aggregate by the Permitted Holders on a fully diluted basis of the Voting Equity Interests of DBI and (B) during each period of twelve (12) consecutive months thereafter, a majority of the seats (other than vacant seats) on the board of directors of DBI will be occupied by Persons who were either (1) nominated by the board of directors of DBI or a Permitted Holder, (2) appointed by directors so nominated or (3) appointed by a Permitted Holder or (iii) in connection with an equity transfer, merger, consolidation or other combination transaction of DBI or one or more of its direct or indirect holding
companies with or by another entity or entities, (A) any combination of Permitted Holders in the aggregate otherwise have the right, directly or indirectly, to designate or elect a percentage of the Board of Directors of DBI (or, if DBI is not a surviving entity as a result of such merger, such surviving entity) after giving effect to such transaction that is not less than the Permitted Holders’ ratable interest in DBI immediately before giving effect thereto or (B) any combination of Permitted Holders in the aggregate beneficially own, directly or indirectly, a percentage of the ordinary Voting Equity Interests of DBI (or, if DBI is not a surviving entity as a result of such merger, such surviving entity) after giving effect to such transaction that is not less than all Permitted Holders’ ratable interest in DBI immediately before giving effect thereto.”
| (iii) | “DBH”. Section 1.1 of the Canadian Management Agreement is hereby amended by adding the following definition of “DBH” in appropriate alphabetical order. |
““DBH”: means Driven Brands Holdings Inc., a Delaware corporation.”
| (iv) | “DBI”. Section 1.1 of the Canadian Management Agreement is hereby amended by adding the following definition of “DBI” in appropriate alphabetical order. |
““DBI”: means Driven Brands, Inc., a Delaware corporation.”
| (v) | “Future Brand”. The definition of “Future Brand” in Section 1.1 of the Canadian Management Agreement is hereby amended by replacing the word “Parent” with the word “DBI”. |
| (vi) | “IP Services”. The definition of “IP Services” in Section 1.1 of the Canadian Management Agreement is hereby amended by (I) deleting the word “and” immediately following clause (l) thereof, (II) replacing the period “.” at the end of clause (m) thereof with “; and” and (III) adding the following clause (n) at the end thereof. |
“(n) maintaining, registering, updating or taking any such actions the applicable Manager deems appropriate to enable the applicable SPV Franchising Entity to use any domain names, including managing and holding such domain names in the name of such Manager in the WhoIS database.”
| (vii) | “Management Group”. The definition of “Management Group” in Section 1.1 of the Canadian Management Agreement is hereby amended by replacing the word “Parent” with the word “DBI”. |
| (viii) | “Parent”. The definition of “Parent” in Section 1.1 of the Canadian Management Agreement is hereby amended and restated in its entirety as set forth below and the definition of “Parent” in the introductory paragraph of the Canadian Management Agreement is hereby deleted in its entirety. |
““Parent”: means Driven Holdings, LLC, a Delaware limited liability company.”
| (ix) | “Permitted Holders”. The definition of “Permitted Holders” in Section 1.1 of the Canadian Management Agreement is hereby amended and restated in its entirety as set forth below. |
““Permitted Holders”: means, at any time, each of (i) (a) the Sponsor and its subsidiaries or other affiliates from time to time, including any funds managed or advised by the Sponsor, and (b) Xxxxx Capital Management, LLC and any funds directly or indirectly managed or advised by Xxxxx Capital Management, LLC, together with their subsidiaries or other affiliates from time to time, (ii) any member of the Management Group, (iii) any Person that has no material assets other than the capital stock of DBI and, directly or indirectly, holds or acquires 100% of the total voting power of the Voting Equity Interests of DBI, and of which no other Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the 1934 Act, or any successor provision), other than any of the other Permitted Holders specified in clauses (i) and (ii) above, holds more than 50% of the total voting power of the Voting Equity Interests thereof and (iv) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the 1934 Act, or any successor provision) the members of which include any of the Permitted Holders specified in clauses (i) and (ii) above and that, directly or indirectly, hold or acquire beneficial ownership of the Voting Equity Interests of DBI (a “Permitted Holder Group” ), so long as (1) each member of the Permitted Holder Group has voting rights proportional to the percentage of ownership interests held or acquired by such member and (2) no Person or other “group” (other than Permitted Holders specified in clauses (i) and (ii) above) beneficially owns more than 50% on a fully diluted basis of the Voting Equity Interests held by the Permitted Holder Group.”
| (x) | “Qualified IPO”. The definition of “Qualified IPO” in Section 1.1 of the Canadian Management Agreement is hereby amended by replacing the word “Parent” with the word “DBI”. |
| (xi) | “Tax Payment Deficiency”. The definition of “Tax Payment Deficiency” in Section 1.1 of the Canadian Management Agreement is hereby amended by replacing the word “Parent” with the word “DBI”. |
(b) Amendment to Section 2.2.
Section 2.2(d) of the Canadian Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and
double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth below.
“(d) Advertising Funds. The Manager shall maintain twelve accounts in the name of the applicable Canadian Securitization
Entity designated as the “Canadian Advertising Fund Accounts” for advertising payments due to the applicable Service Recipients in respect of the CARSTAR Brand, the Maaco Brand, the Meineke Brand, the Pro Oil Brand, Take 5 Brand,
the Go Glass Brand and Star Auto Glass Brand in Canada, and may in the future create new Advertising Fund Accounts from time to time. Advertising Fees will be paid directly, or transferred by the Manager from the Canadian Concentration Account to
the applicable Canadian Advertising Fund Account (other than any Maaco Net Advertising Commissions in the United States, which will constitute Collections); provided that Advertising Fees related to national and/or local cooperative
advertising funds (the “Advertising Co-op Funds”) administered by an unaffiliated third party designee of Parent
DBI (which shall include, without limitation, local advertising cooperatives and cooperatives established by international franchise associations) will be paid directly to the
applicable Advertising Co-op Fund and will not be deposited into the applicable Canadian Advertising Fund Accounts. The Manager will not make or permit or cause any other Person to make or permit any
borrowings to be made or liens to be levied against the applicable Canadian Advertising Fund Accounts or the funds therein, except in connection with reimbursements for advances made by the Manager to fund deficits therein. The Manager will apply
the amount on deposit in the applicable Canadian Advertising Fund Accounts, and in respect of the Advertising Co-op Funds shall use commercially reasonable efforts to ensure that the amounts on deposit are
applied, solely to cover the costs and expenses (including, in each case, costs and expenses incurred prior to the Series 2020-1 Closing Date) associated with the administration of such account and costs and
expenses related to the marketing and advertising programs of the Canadian SPV Franchising Entities, including reimbursement for advances. The Manager may make advances to the applicable Canadian Securitization Entity to fund deficits in the
applicable Canadian Advertising Fund Accounts or the Advertising Co-op Funds from time to time to the extent that it reasonably expects to be reimbursed for such advances from the proceeds of future
Advertising Fees, it being agreed that any such advances will not constitute Manager Advances. Such advances may be reimbursed from future Advertising Fees payable by Franchisees or from future deposits in the applicable Canadian Advertising Fund
Accounts. The Manager, acting on behalf of each of the Canadian Securitization Entities, may in accordance with the Managing Standard and the terms of the applicable franchise agreement with Franchisees and this Agreement, as applicable, increase or
reduce the Advertising Fees required to be paid by the Franchisees pursuant to the terms of the applicable franchise agreements.”
(c) Amendment to Section 2.13.
Section 2.13 of the Canadian Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and
double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth below.
“Section 2.13 Letter of Credit Reimbursement Agreement. In the event the
DBIParent has deposited cash collateral as security for its obligations under the applicable Letter of Credit Reimbursement Agreement into a bank account maintained
in the name of the Issuer, (i) if the DBIParent fails to make any payment to the Issuer when due under the applicable Letter of Credit Reimbursement Agreement,
the Manager will withdraw the amount of such delinquent payment from such bank account within one Business Day of the due date of such payment under the applicable Letter of Credit Reimbursement Agreement and deposit such amount into the applicable
Canadian Collection Account, and (ii) if the amount on deposit in such account exceeds an amount equal to 105% of the sum of (x) the aggregate exposure under all outstanding letters of credit under the applicable Letter of Credit
Reimbursement Agreement plus (y) the aggregate amount then due to the Issuer under Section 4 or Section 5 of the applicable Letter of Credit Reimbursement Agreement, the Manager will withdraw the amount of such excess from such
account and pay such excess to the DBIParent.”
(d) Amendment to Section 3.1. Section 3.1(b) of the
Canadian Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the
same manner as the following example: bold and double-underlined text) as set forth below.
“(b) Delivery of Financial Statements. The Manager shall provide the financial statements of the Driven
Brands, and each of the Service Recipients, and DBH, as required under Section 4.1(f)
and (g), (h) and (i) of the Base Indenture; provided that to the extent of any material difference in
reporting between DBH and Parent, the Manager shall furnish a reconciliation in reporting between DBH and Parent.”
(e) Amendment to Section 4.1. Section 4.1(k) of the
Canadian Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the
same manner as the following example: bold and double-underlined text) as set forth below.
(k) Financial Statements. As of the Series 2020-1 Closing Date, the audited consolidated
financial statements of the DBIParent and its Subsidiaries, including the Manager, for the fiscal year ended December 28, 2019 included
in the Offering Memorandum, reported on and accompanied by an unqualified report from Independent Auditors, present fairly in all material respects the financial condition of the
DBIParent and its Subsidiaries, as applicable, as of such date, and the results of operations and shareholders’ equity for the respective periods then ended.
All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP (except as otherwise stated therein) applied consistently through the periods involved.
(f) Amendment to Section 5.4. Section 5.4 of the Canadian
Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same
manner as the following example: bold and double-underlined text) as set forth below.
““Section 5.4 Specified Non-Securitization Debt Cap(a) .
Following the Series 2015-1 Series 2021-1 Closing Date, Manager shall not and
shall not permit the Non-Securitization Entities to Parent and the Parent Consolidated Subsidiaries (other than the
Securitization Entities or any other securitization entity or similar entity under any Parent Permitted Securitization Financing) shall not incur any additional Indebtedness for borrowed money (“Specified Non-Securitization Debt”) if, after giving effect to such incurrence (and any repayment of Specified Non-Securitization Debt on such date), such incurrence would
cause the aggregate Outstanding Principal Amount of the Specified Non-Securitization Debt of the Non-Securitization Entities as of such date to exceed $50,000,000 (the
“Driven Brands Specified Non-Securitization Debt Cap”); provided that the Driven Brands Specified Non-Securitization Debt Cap shall not be applicable to
Specified Non-Securitization Debt (i) issued or incurred to refinance the Notes in whole, (ii) in excess of the Driven Brands Specified Non-Securitization Debt
Cap if (a) the creditors (other than any creditor with respect to an aggregate amount of outstanding Indebtedness less than $50,000) under and with respect to such Indebtedness execute a non-disturbance
agreement with the Trustee, as directed by the Manager and in a form reasonably satisfactory to the Servicer and the Trustee, that acknowledges the terms of the Securitization Transaction including the bankruptcy remote status of the Securitization
Entities and their assets and (b) after giving pro forma effect to the incurrence of such Indebtedness (and any repayment of existing Indebtedness), the Driven Brands Leverage Ratio (as calculated without regard to any Indebtedness that is
subject to the Driven Brands Specified Non-Securitization Debt Cap) is less than or equal to 7.00x, (iii) that is considered Indebtedness due solely to a change in accounting rules that takes effect
subsequent to the Series 2015-1 Closing Date but that was not considered Indebtedness prior to such date, (iv) in respect of any obligation of any
Non-Securitization Entity to reimburse any Co-Issuer for any draws under any one or more Letters of Credit, (v) in respect of intercompany notes among Non-Securitization Entities or (vi) with respect to any Letter of Credit that is 100% cash collateralized. A violation of the foregoing covenant will result in a Manager Termination Event and therefore a Rapid
Amortization Event.”.
(g) Amendment to Section 6.1(a). Section 6.1(a) of the Canadian Management Agreement is hereby amended to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text) as set forth below.
If a Manager Termination Event has occurred and is continuing, the Control Party (acting at the direction of the Controlling Class Representative) may (i) waive such Manager Termination Event (except for a Manager Termination Event described in clauses (vi) or (vii) above) or (ii) direct the Trustee to terminate the Manager in its capacity as such by the delivery of a termination notice (a “Termination Notice”) to the Manager (with a copy to each of the Service Recipients, the Back-Up Manager and the Rating Agencies); provided, that the delivery of a Termination Notice will not be required in respect of any Manager Termination Event relating to the Manager Termination Events described in clauses (vi) or (vii) above. If the Trustee, acting at the direction of the Control Party (acting at the direction of the Controlling Class Representative), delivers a Termination Notice to the Manager pursuant to the Management Agreement (or automatically upon the occurrence of any Manager Termination Event relating to the Manager Termination Events described in clauses (vi) or (vii) above), all rights, powers, duties, obligations and responsibilities of the Manager under the Management Agreement and the other Transaction Documents (other than with respect to the payment of Indemnification Amounts or its obligations with respect to Disentanglement), including with respect to the Accounts or otherwise, will vest in and be assumed by the Successor Manager appointed by the Control Party (acting at the direction of the Controlling Class Representative). If no Successor Manager has been appointed by the Control Party (acting at the direction of the Controlling Class Representative), the Back-Up Manager will serve as the Interim Successor Manager and will work with the Servicer to implement the Transition Plan until a Successor Manager (other than the Back-Up Manager) has been appointed by the Control Party (acting at the direction of the Controlling Class Representative).
(h) Amendment to Section 6.3(a). Section 6.3(a) of the Canadian
Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same
manner as the following example: bold and double-underlined text) as set forth below.
“Disentanglement. Following the delivery of a Termination Notice to the Manager pursuant to Section 6.1(a) or Section 6.2 above or notice of resignation of the Manager pursuant to Section 4.4(b), the Manager shall cooperate with the Back-Up Manager and the Control Party in connection with the implementation of the Transition Plan (as defined in the Back-Up Management Agreement) and the complete transition to a Successor Manager, without interruption or adverse impact on the provision of Services (the “Disentanglement”). The Manager shall cooperate fully with the Successor Manager and otherwise promptly take all actions required to assist in effecting a complete Disentanglement and shall follow
any directions that may be provided by the Back-Up Manager and the Control Party. On and after the 2021 Springing Amendments Implementation Date, the Manager will use its commercially reasonable efforts to not materially reduce the existing staff and resources of the Manager devoted to or shared with the provision of the Services prior to the date of such Termination Notice and allow reasonable access to the Manager’s premises, systems and offices during the Disentanglement Period (such activities being referred to as “Continuity of Services”). The Manager shall provide all information and assistance regarding the terminated Services required for Disentanglement and, on and after the 2021 Springing Amendments Implementation Date, Continuity of Services, including data conversion and migration, interface specifications, and related professional services. All services relating to Disentanglement (“Disentanglement Services”), including all reasonable training for personnel of the Back-Up Manager, the Successor Manager or the Successor Manager’s designated alternate service provider in the performance of the Services, will be deemed a part of the Services to be performed by the Manager. So long as the Manager continues to provide the Services (whether or not the Manager has been terminated as the Manager) during the Disentanglement Period, the Manager will continue to be paid the Weekly Management Fee.”
(i) Amendment to Section 6.3(c). Section 6.3(c) of
the the Canadian Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually
in the same manner as the following example: bold and double-underlined text) as set forth below.
““(c) Duration of Obligations. The Manager’s obligation to provide Disentanglement Services will
continue during the period commencing on (a) the date that delivery of a Termination Notice is delivered
to the Manager or (b) the delivery of a resignation notice by either or both Managers and ending on the date on which the Successor Manager or the
re-engaged Manager assumes all of the obligations of the Manager hereunder (the “Disentanglement Period”).”
(j) Amendment to Section 8.17. Section 8.17 of the Canadian
Management Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same
manner as the following example: bold and double-underlined text) as set forth below.
“Section 8.17 Securitization-Owned Locations. In the future,
DBIParent or its affiliates may, in their reasonable discretion, contribute one or more other Securitization-Owned Locations to the Canadian Securitization Entities
or the Canadian Securitization Entities may acquire one or more Securitization-Owned Locations. The Manager will perform all of the duties and obligations of the Canadian Securitization Entities in connection with the operation and ownership of such
Securitization-Owned Locations, including, without limitation, collecting revenues generated by such Securitization-Owned Locations, maintaining
appropriate levels of property and casualty insurance, and performing any other activities necessary or desirable for the operation of such Securitization-Owned Locations, as required under the Transaction Documents. In the event a Canadian Securitization Entity acquires a Securitization-Owned Location, the Manager will provide written notice thereof to the Trustee.”
2. Effectiveness. This Amendment shall become effective when each of the signatories hereto has executed a counterpart hereof. Except as expressly set forth or contemplated in this Amendment, the terms and conditions of the Canadian Management Agreement shall remain in full force and effect and not be altered, amended or changed in any manner whatsoever, except by any further amendment to the Canadian Management Agreement made in accordance with the terms thereof, as amended by this Amendment.
3. Counterparts; Binding Effect. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment in electronic form (including by telecopy, pdf, or e-signature) shall be effective as delivery of a manually executed counterpart of this Amendment.
4. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN.
5. Electronic Signatures and Transmission. For purposes of this Amendment, any reference to “written” or “in writing” means any form of written communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by Electronic Transmission. “Electronic Transmission” means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process. The Trustee is authorized to accept written instructions, directions, reports, notices or other communications delivered by Electronic Transmission and shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by Electronic Transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such Electronic Transmission, and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, directions, notices, reports or other communications or information, and the risk of interception and misuse by third parties (except to the extent such action results from gross negligence, willful misconduct or fraud by the Trustee). Any requirement in this Amendment that is to be signed or authenticated by “manual signature” or similar language shall not be deemed to prohibit signature to be by facsimile or electronic signature and shall not be deemed to prohibit delivery thereof by
Electronic Transmission. Notwithstanding anything to the contrary in this Amendment, any and all communications (both text and attachments) by or from the Trustee that the Trustee in its sole discretion deems to contain confidential, proprietary and/or sensitive information and sent by Electronic Transmission will be encrypted. The recipient of the Electronic Transmission will be required to complete a one-time registration process.
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IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be duly executed and delivered as of the date first above written.
| DRIVEN BRANDS CANADA SHARED SERVICES INC., as Canadian Manager | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice-President and Secretary | |
| DRIVEN BRANDS CANADA FUNDING CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice-President and Secretary | |
| CARSTAR CANADA SPV LP by its general partner CARSTAR CANADA SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice-President and Secretary | |
| CARSTAR CANADA SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice-President and Secretary | |
[Signature Page to Amendment No. 2 to Canadian Management Agreement]
| MAACO CANADA SPV LP by its general partner MAACO CANADA SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| MAACO CANADA SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| MEINEKE CANADA SPV LP by its general partner, MEINEKE CANADA SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| MEINEKE CANADA SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
[Signature Page to Amendment No. 2 to Canadian Management Agreement]
| TAKE 5 CANADA SPV LP by its general partner TAKE 5 CANADA SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| TAKE 5 CANADA SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| GO GLASS FRANCHISOR SPV LP by its general partner GO GLASS FRANCHISOR SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| GO GLASS FRANCHISOR SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
[Signature Page to Amendment No. 2 to Canadian Management Agreement]
| STAR AUTO GLASS FRANCHISOR SPV LP by its general partner STAR AUTO GLASS FRANCHISOR SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| STAR AUTO GLASS FRANCHISOR SPV GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| DRIVEN CANADA PRODUCT SOURCING LP by its general partner DRIVEN CANADA PRODUCT SOURCING GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| DRIVEN CANADA PRODUCT SOURCING GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
[Signature Page to Amendment No. 2 to Canadian Management Agreement]
| DRIVEN CANADA CLAIMS MANAGEMENT LP by its general partner DRIVEN CANADA CLAIMS MANAGEMENT GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| DRIVEN CANADA CLAIMS MANAGEMENT GP CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
| DRIVEN CANADA FUNDING HOLDCO CORPORATION, as a Service Recipient | ||
| By: | /s/ Xxxxx X’Xxxxx | |
| Name: | Xxxxx X’Xxxxx | |
| Title: | Executive Vice President and Secretary | |
[Signature Page to Amendment No. 2 to Canadian Management Agreement]
| CITIBANK, N.A., in its capacity as Trustee | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Senior Trust Officer | |
[Signature Page to Amendment No. 2 to Canadian Management Agreement]
