Exhibit 10.4

EXECUTION VERSION

THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

This THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of February 12, 2020, among Xponential Fitness LLC, a Delaware limited liability company, and St. Gregory Holdco, LLC, a Delaware limited liability company (collectively, the “Borrower”), the other loan parties party hereto (together with the Borrower, the “Loan Parties”), the financial institutions party hereto (together with their respective successors and assigns, the “Lenders”) and Monroe Capital Management Advisors, LLC, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”). Unless otherwise specified herein, capitalized terms used in this Amendment shall have the meanings ascribed to them in the Credit Agreement (as hereinafter defined).

BACKGROUND

WHEREAS, the Borrower, the other Loan Parties party thereto, the Administrative Agent, and the Lenders are parties to that certain Second Amended and Restated Credit Agreement dated as of October 25, 2018, as amended by that certain First Amendment to Second Amended and Restated Credit Agreement and Incremental Term Loan Joinder Agreement, dated as of April 18, 2019, as further amended by that certain Second Amendment and Waiver to Second Amended and Restated Credit Agreement, dated as of December 20, 2019 (the “Second Amendment”) (as further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);

WHEREAS, the Loan Parties party hereto have (i) advised Administrative Agent and the Lenders that Holdings is going to receive $50,000,000 in Net Cash Proceeds (the “Equity Infusion”) from the issuance of Capital Securities to the Purchaser (the “Equity Acquisition”) pursuant to, and as such term is defined in, that certain Class A-4 Unit Purchase Agreement dated as of February 12, 2020 (a true and correct copy of which is attached hereto as Exhibit A, the “SPA”), and (ii) requested that the Administrative Agent and the Lenders consent to the application of the Equity Infusion and the Equity Acquisition pursuant to the SPA, in each case, as set forth herein, and agree to amend the Credit Agreement in certain respects as more fully described herein, and the Administrative Agent and the Lenders are willing to do so on the terms and subject to the conditions set forth herein; NOW THEREFORE, in consideration of the matters set forth in the recitals and the covenants and provisions herein set forth, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

Section 1. Definitions. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement.

Section 2. Consent. Notwithstanding anything to the contrary set forth in the Credit Agreement or any of the other Loan Documents, and provided that $30,000,000 of the Equity Infusion is paid to Administrative Agent to be applied to the outstanding principal balance of Term Loan A, Administrative Agent and Lenders consent to (x) the retention by Holdings of the remaining $20,000,000 of the Equity Infusion and hereby waive any Mandatory Prepayment Event with respect thereto, (y) the Equity Acquisition by the Purchaser pursuant to the SPA and the Change of Control resulting therefrom and (z) the voluntary prepayment of $30,000,000 of the Equity Infusion and hereby waive any Prepayment Fee in connection therewith. The foregoing consent shall apply only to the transactions as specified herein, and shall not apply to any other similar transaction.

Section 3. Amendments to the Credit Agreement. As of the Third Amendment Effective Date (as defined below), the Credit Agreement is hereby amended as follows:

3.1 Section 1.1 of the Credit Agreement is hereby further amended by amending and restating the following definitions in their entirety as set forth below:

“Agent Fee Letter” means, collectively, (i) the second amended and restated fee letter dated as of the Closing Date between Borrower and the Administrative Agent, (ii) the first amendment fee letter dated as of April 18, 2019 between Borrower and the Administrative Agent, (iii) the second amendment fee letter dated as of December 20, 2019 (the “Second Fee Letter”) between Borrower and the Administrative Agent, and (iv) the third amendment fee letter dated as of February 12, 2020 between Borrower and the Administrative Agent.

3.2 Section 6.4.2 of the Credit Agreement is hereby amended by amending and restating it in its entirety as follows:

6.4.2. Payment of Principal. On the last day of each fiscal quarter, commencing with the fiscal quarter ending December 31, 2018, the Term A Loan shall be repaid to Administrative Agent, for the benefit of the Lenders in accordance with each Lender’s Pro Rata Share of the aggregate principal amount of funded Term A Loans, in an amount equal to: (a) with respect to each of the first seven full fiscal quarters after the Closing Date, one-quarter of one percent (1/4%) of the aggregate amount of Term A Loans made hereunder and (b) with respect to each fiscal quarter ending thereafter, one and one-quarter of one percent (1¹⁄₄%) of the aggregate amount of Term A Loans made hereunder (as such amounts shall be reduced in connection with prepayments in accordance with Section 6.3.1). Unless sooner paid in full, the outstanding principal balance of the Term A Loans shall be paid in full on the Term Loan Maturity Date. The principal amounts of any Incremental Term Loan shall be repaid in installments as set forth in the applicable Incremental Term Loan Joinder Agreement.

3.3 Paragraphs (a), (b) and (c) of the Second Fee Letter are hereby deleted and shall be of no further force or effect.

 

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Section 4. Representations and Warranties. Each Loan Party hereby represents and warrants to Administrative Agent and each Lender that the following are true and correct as of the Third Amendment Effective Date:

4.1 Continuation of Representations and Warranties. After giving effect to this Amendment, all representations and warranties of Borrower and the other Loan Parties set forth in the Credit Agreement, this Amendment and the other Loan Documents are true and correct in all material respects with the same effect as if then made (except to the extent such representations and warranties expressly relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) as of the Third Amendment Effective Date;

4.2 No Existing Default. Both immediately before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;

4.3 Authorization; No Conflict. Each Loan Party is duly authorized to execute and deliver this Amendment and each Loan Party is duly authorized to perform its Obligations under each Loan Document to which it is a party. The execution, delivery and performance by each Loan Party of this Amendment do not and will not (a) require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect); (b) conflict with (i) any provision of law, (ii) the charter, by-laws or other organizational documents of any Loan Party or (iii) any agreement, indenture, instrument or other document, or any judgment, order or decree, which is binding upon any Loan Party or any of their respective properties, except, in the case of clauses (i) and (iii), to the extent such violations would not reasonably be expected to result in a Material Adverse Effect or (c) require, or result in, the creation or imposition of any Lien on any asset of any Loan Party (other than Liens in favor of Administrative Agent created pursuant to the Collateral Documents or permitted by Section 11.2 of the Credit Agreement); and

4.4 Binding Effect. This Amendment constitutes the legal, valid and binding obligation of each Loan Party, enforceable against each Loan Party in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally and to general principles of equity.

Section 5. Conditions Precedent. This Amendment shall be effective as of the date first set forth above, subject to the satisfaction (or waiver) of the following conditions precedent (the date of such satisfaction being the “Third Amendment Effective Date”):

5.1 Execution and Delivery. Each Loan Party, Administrative Agent and Required Lenders shall have executed and delivered to Administrative Agent this Amendment.

5.2 Agent Fee Letter. Administrative Agent shall have received an executed Agent Fee Letter dated as of the date hereof by the Administrative Agent and acknowledged by the Borrower (the “Third Amendment Fee Letter”).

 

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5.3 Equity Infusion Payment. The Administrative Agent shall have received (or shall receive substantially contemporaneously with the closing of the Equity

Acquisition on the date hereof) proceeds from the Equity Infusion in an amount equal to $30,000,000 which proceeds shall be applied to the outstanding principal balance of the Term Loan A.

5.4 Payment of Fees and Attorney Costs. Borrower shall have paid to Administrative Agent reasonable and documented out-of-pocket costs and expenses of Administrative Agent incurred by it in connection with the transactions contemplated hereby (including reasonable legal costs of Administrative Agent in connection with the preparation and negotiation of this Amendment).

Section 6. Reaffirmation. Each Loan Party hereby (i) expressly reaffirms and assumes all of its obligations and liabilities to Administrative Agent and the Lenders as set forth in the Credit Agreement, the Collateral Documents and the other Loan Documents (in each case, as the same have been amended by this Amendment or as otherwise amended, amended and restated, supplemented or otherwise modified) (collectively, the “Reaffirmed Documents”) and agrees to be bound by and abide by and operate and perform under and pursuant to and comply fully with all of the terms, conditions, provisions, agreements, representations, undertakings, warranties, indemnities, grants of security interests and covenants contained in the Reaffirmed Documents as though such Reaffirmed Documents were being re-executed on the date hereof, except to the extent that such terms expressly relate to an earlier date; and (ii) acknowledges, ratifies, confirms and reaffirms without condition, all Liens and security interests granted to Administrative Agent, for its benefit and the benefit of Lenders, pursuant to the Reaffirmed Documents and acknowledges and agrees that all of such Liens and security interests are intended and shall be deemed and construed to continue to secure the Obligations under the Reaffirmed Documents, as amended, restated, supplemented or otherwise modified and in effect from time to time, and all extensions, renewals, refinancing, amendments or modifications of any of the foregoing. Without limiting the foregoing, each Loan Party, Administrative Agent and each Lender expressly acknowledges and reaffirms Section 3 (Waiver) of the Second Amendment.

Section 7. Miscellaneous.

7.1 Effect of Amendment. Except as expressly set forth herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Administrative Agent or any Lender under the Credit Agreement or any Loan Document, or constitute a waiver of any provision of the Credit Agreement or any Loan Document and each Loan Party hereby fully ratifies and affirms each Loan Document to which it is a party.

7.2 Entire Agreement. This Amendment embodies the entire agreement and understanding among the parties hereto and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof.

 

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7.3 References. Any reference to the Credit Agreement contained in any notice, request, certificate, or other document executed concurrently with or after the execution and delivery of this Amendment shall be deemed to include this Amendment unless the context shall otherwise require. Reference in this Amendment, the Credit Agreement or any other Loan Document to the Credit Agreement shall be a reference to the Credit Agreement as amended hereby and as further amended, modified, restated, supplemented or extended from time to time.

7.4 Ratification of Liability; Acknowledgment of Rights; Release of Claims. Each Loan Party hereby ratifies and confirms its liabilities, obligations and agreements under the Credit Agreement and the other Loan Documents, and the Liens granted or purported to be granted and perfected thereby, and acknowledges that: (i) it has no defenses, claims or set-offs to the enforcement by Administrative Agent and/or Lender of such liabilities, obligations and agreements through and as of the date hereof; (ii) Administrative Agent and each Lender has fully performed all undertakings owed to the Loan Parties through and as of the date hereof; and (iii) except as otherwise expressly set forth herein, neither Administrative Agent nor any Lender waives, diminishes or limits any term or condition contained in the Credit Agreement or in any of the other Loan Documents.

7.5 Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.

7.6 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AMENDMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED THAT NOTHING IN THIS AMENDMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE ADMINISTRATIVE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER APPROPRIATE JURISDICTION. EACH LOAN PARTY, ADMINISTRATIVE AGENT AND EACH LENDER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. ADMINISTRATIVE AGENT, EACH LENDER AND EACH LOAN PARTY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH LOAN PARTY, ADMINISTRATIVE AGENT AND EACH LENDER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

 

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7.7 WAIVER OF JURY TRIAL. EACH LOAN PARTY, ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AMENDMENT AND ANY INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

7.8 Severability. Whenever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment is held to be prohibited by or invalid under applicable law in any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating any other provision of this Amendment.

7.9 Headings. Article, section and subsection headings in this Amendment are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

7.10 Counterparts. This Amendment may be executed in any number of counterparts and by either party hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together constitute one and the same instrument. Receipt by telecopy or other electronic means, including .pdf of any executed signature page to this Amendment shall constitute effective delivery of such signature page.

Section 8. Release. In consideration of the agreements of the Administrative Agent and the Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Loan Party, on behalf of itself and its successors, assigns, and other legal representatives (collectively, the “Releasors” and each, a “Releasor”), hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges the Administrative Agent and each Lender, and their successors and assigns, and their respective present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (collectively, the Administrative Agent, each Lender, and all such other Persons, the “Releasees”, and each, a “Releasee”), of and from all demands, actions, causes of action, suits, damages and any and all other claims, counterclaims, and rights of set off whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known or that reasonably should be known, suspected or that reasonably should be suspected, both at law and in equity (and all defenses that may arise out of the foregoing), which such Loan Party or any of its successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which has arisen at any time prior to the date of this Amendment for or on account of, or relating to the Credit Agreement or any of the other Loan Documents or transactions thereunder.

 

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Each Loan Party understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense in respect of the matter covered thereby and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.

Each Loan Party agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.

Each Loan Party, on behalf of itself and each Releasor, hereby absolutely, unconditionally, and irrevocably, covenants and agrees with and in favor of each Releasee that it will not sue (at law, in equity, in any regulatory proceeding, or otherwise) any Releasee on the basis of any Claim released, remised, and discharged by such Loan Party pursuant to this Section 8.

[signature page follows]

 

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The parties hereto have caused this Amendment to be duly executed and delivered by their duly authorized officers as of the date first set forth above.

 

BORROWER:				XPONENTIAL FITNESS LLC, a Delaware limited liability company
				By:		/s/ John Meloun
				Name:		John Meloun
				Title:		CFO
				ST. GREGORY HOLDCO, LLC, a Delaware limited liability company
				By:		/s/ John Meloun
				Name:		John Meloun
				Title:		CFO

 

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OTHER LOAN PARTIES:				H&W FRANCHISE HOLDINGS LLC, a Delaware limited liability company
				By:		/s/ John Meloun
				Name:		John Meloun
				Title:		CFO
				H&W FRANCHISE INTERMEDIATE HOLDINGS LLC, a Delaware limited liability company
				By:		/s/ John MEloun
				Name:		John MEloun
				Title:		CFO
				CLUB PILATES FRANCHISE, LLC, a Delaware limited liability company
				By:		/s/John Meloun
				Name:		John Meloun
				Title:		CFO
				PILATES LICENSING, LLC, a Delaware limited liability company
				By:		/s/ John MEloun
				Name:		John MEloun
				Title:		CFO
				CYCLEBAR HOLDCO, LLC, a Delaware limited liability company
				By:		/s/ John Meloun
				Name:		John Meloun
				Title:		CFO

 

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ADMINISTRATIVE AGENT:   MONROE CAPITAL MANAGEMENT ADVISORS, LLC
By:		Nathan Harrell
Name: Nathan Harrell
Title: Managing Director

 

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LENDERS:
MONROE CAPITAL PRIVATE CREDIT FUND II LP, in its capacity as a Lender
By: MONROE CAPITAL PRIVATE CREDIT FUND II LLC, its general partner
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director
MONROE CAPITAL PRIVATE CREDIT FUND II FINANCING SPV LLC, in its capacity as a Lender
By: MONROE CAPITAL PRIVATE CREDIT FUND II LP, as Designated Manager
By: MONROE CAPITAL PRIVATE CREDIT FUND II LLC, its general partner
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director
MONROE CAPITAL PRIVATE CREDIT FUND II (UNLEVERAGED) LP, in its capacity as a Lender
By: MONROE CAPITAL PRIVATE CREDIT FUND II LLC, its general partner
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director

 

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				to Second A&R Credit Agreement

MONROE CAPITAL PRIVATE CREDIT FUND II (UNLEVERAGED OFFSHORE) LP, in its capacity as a Lender
By: MONROE CAPITAL PRIVATE CREDIT FUND II LLC, its general partner
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director   MONROE PRIVATE CREDIT FUND A FINANCING SPV LLC, in its capacity as a Lender
By: MONROE PRIVATE CREDIT FUND A LP, as its Designated Manager
By: MONROE PRIVATE CREDIT FUND A LLC, its general partner
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director
MONROE CAPITAL PRIVATE CREDIT FUND I LP, in its capacity as a Lender   By: MONROE CAPITAL PRIVATE CREDIT FUND I LLC, its general Partner
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director

 

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MONROE CAPITAL PRIVATE CREDIT FUND I FINANCING SPV LLC, in its capacity as a Lender
By: MONROE CAPITAL PRIVATE CREDIT FUND I LP, as its Designated Manager
By: MONROE CAPITAL PRIVATE CREDIT FUND I LLC, its general partner
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director
MONROE CAPITAL MML CLO VI, LTD., in its capacity as a Lender
By: MONROE CAPITAL MANAGEMENT LLC, as Asset Manager and Attorney-in-fact
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director
MONROE CAPITAL MML CLO 2017-1, LTD., in its capacity as a Lender
By: MONROE CAPITAL MANAGEMENT LLC, as Collateral Manager Attorney-in Fact
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director
MONROE CAPITAL MML CLO VI, LTD., in its capacity as a Lender
By: MONROE CAPITAL MANAGEMENT LLC, as Asset Manager and Attorney-in-fact
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director

 

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MONROE CAPITAL PRIVATE CREDIT FUND III LP, in its capacity as a Lender
By: MONROE CAPITAL PRIVATE CREDIT FUND III LLC, its general partner
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director
MONROE CAPITAL PRIVATE CREDIT FUND III FINANCING SPV LLC, in its capacity as a Lender
By: MONROE CAPITAL PRIVATE CREDIT FUND III LP, as Designated Manager
By: MONROE CAPITAL PRIVATE CREDIT FUND III LLC, as general partner
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director
MONROE CAPITAL PRIVATE CREDIT FUND III (UNLEVERAGED) LP, in its capacity as a Lender
By: MONROE CAPITAL PRIVATE CREDIT FUND III LLC, its general partner
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director
MONROE CAPITAL PRIVATE CREDIT FUND VT LP, in its capacity as a Lender
By: MONROE CAPITAL PRIVATE CREDIT FUND VT LLC, its general partner
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director

 

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MC FINANCING SPV I, LLC, in its capacity as a Lender
By:		/s/ Nathan Harrell
Name: Nathan Harrell
Title: Managing Director
EVEREST REINSURANCE COMPANY, in its capacity as a Lender
By: PineBridge Investments LLC, its investment manager
By:		/s/ Doug Lyons
Name: Doug Lyons
Title: Managing Director
PINEBRIDGE PRIVATE CREDIT, L.P., in its capacity as a Lender
By: PineBridge Private Credit General Partner, L.P., its general partner
By: PineBridge Private Credit General Partner, LLC, its general partner
By: PineBridge Investments LLC, its sole member
By:		/s/ Doug Lyons
Name: Doug Lyons
Title: Managing Director
PINEBRIDGE PRIVATE HOLDINGS I, LLC, in its capacity as a lender
By:		/s/ Doug Lyons
Name: Doug Lyons
Title: Managing Director

 

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