Waivers
Exhibit 10.3
As of June 30, 2023, each of Xponential Fitness, Inc., a Delaware corporation, Xponential Intermediate Holdings, LLC, a Delaware limited liability company (the “Parent”), Xponential Fitness LLC, a Delaware limited liability company (the “Borrower”), each Subsidiary (as defined in the Financing Agreement (defined below)) of Parent listed as a "Borrower" on the signature pages to the Financing Agreement, each other Subsidiary of Parent listed as a "Guarantor" on the signature pages of the Financing Agreement (together, the “Company”) agrees not to provide any material nonpublic information to DESALKIV Portfolios LLC (“DE Shaw”) and any of its affiliates identified to Borrower in writing and with respect to which Xxxxxxxx agrees to be bound hereby, including any material nonpublic information required to be provided pursuant to: (i) Section 7.01 of the Financing Agreement, dated as of April 19, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Financing Agreement”), by and among the Parent, the Borrower, each Subsidiary (as defined therein) of Parent listed as a “Borrower” on the signature pages thereto, each other Subsidiary of Parent listed as a “Guarantor” on the signature pages thereto, the lenders from time to time party thereto (each a “Lender” and collectively, the "Lenders"), Wilmington Trust, National Association, as administrative agent and collateral agent for the Lenders, (ii) Section 19 of the Certificate of Designations of 6.50% Series A-1 Convertible Preferred Stock of Xponential Fitness, Inc. and (iii) Section 19 of the Certificate of Designations of 6.50% Series A Convertible Preferred Stock of Xponential Fitness, Inc., unless and until DE Shaw otherwise notifies the Company in writing.
Waiver
WHEREAS, the Borrower is party to the Financing Agreement
WHEREAS, Section 7.02(o)(iv) of the Financing Agreement requires that, so long as any principal of or interest on any Loan (as defined in the Financing Agreement), or any other Obligation (as defined in the Financing Agreement) (whether or not due, but excluding unasserted contingent indemnification Obligations) shall remain unpaid or any Lender shall have any Commitment (as defined in the Financing Agreement) thereunder, each Loan Party (as defined in the Financing Agreement) shall not, unless the Required Lenders (as defined in the Financing Agreement) shall otherwise consent in writing, terminate and permanently close more than twenty five (25) Franchised Locations (as defined in the Financing Agreement) during any Fiscal Year (as defined in the Financing Agreement) or fifty (50) Franchised Locations in the aggregate after the Effective Date (as defined in the Financing Agreement) (any such terminations and/or closures, a “Specified Transaction”).
The Borrower hereby requests, and the Lenders party hereto (which constitute the Required Lenders) hereby (i) consent to any Specified Transactions that the Borrower or any of the Loan Parties enter into on or after the date hereof and waive any requirement to comply with Section 7.02(o)(iv) and (ii) consent to any Specified Transactions that the Borrower or any of the Loan Parties have entered into prior to the date hereof.
Agreed and Accepted:
|
DE Shaw: |
|
|
|
DESALKIV Portfolios LLC |
By: |
/s/ Xxxx Xxxxxxx |
|
Name: Xxxx Xxxxxxx |
|
Title: Authorized Signatory |
|
The Company: |
|
XPONENTIAL FITNESS LLC |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
|
XPONENTIAL INTERMEDIATE HOLDINGS, LLC |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
By: |
CLUB PILATES FRANCHISE, LLC |
|
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
|
CYCLEBAR HOLDCO, LLC |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
|
CYCLEBAR FRANCHISING, LLC |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
|
CYCLEBAR WORLDWIDE INC. |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
|
STRETCH LAB FRANCHISE, LLC |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
|
ROW HOUSE FRANCHISE, LLC |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
|
|
|
|
|
|
|
YOGA SIX FRANCHISE, LLC |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
|
AKT FRANCHISE, LLC |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
|
PB FRANCHISING, LLC |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
|
STRIDE FRANCHISE, LLC |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
|
XPONENTIAL FITNESS BRANDS INTERNATIONAL, LLC |
By: |
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
|
|
By: |
RUMBLE FRANCHISE, LLC |
|
/s/ Xxxx Xxxxxx |
|
Name: Xxxx Xxxxxx |
|
Title: Chief Financial Officer |
