Common use of Calculation Clause in Contracts

Calculation. For the purposes of calculating the ratios in clauses (1) and (2) above and for the purpose of Section 3.4 and in relation to the delivery of a Compliance Certificate, the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall be determined as of the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA that the Borrowers in respect of the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of the mandatory repayments that may be excluded shall be the amount of such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) above.

Calculation. The “Base Rate Margin” and the “LIBOR Margin” (collectively the “Margins”), and the “Commitment Fee Factor” shall (a) except for the period described in clause (b) of this Subsection, be determined pursuant to the table below (expressed in basis points) based on the Leverage Ratio, as of the end of each Fiscal Quarter, with such Margins and Commitment Fee Factor effective as of the fifth Banking Day after receipt of a Compliance Certificate as required pursuant to Subsection 4.9.2 hereof (and it being expressly understood that the LIBOR Margin once set for a LIBO Rate Loan will not change during the LIBO Rate Period therefor based upon a subsequent change in the Leverage Ratio; provided however, any change in the Leverage Ratio reflected in the Update Certificate shall be applicable to all LIBOR Loans as of the date of such Update Certificate, notwithstanding that it would require a change during the LIBO Rate Period therefore), except that (i) the Margins and Commitment Fee Factor effective as of the Closing Date shall be based on the Compliance Certificate provided on the Closing Date (or in accordance with clause (d) of this Subsection if no such Compliance Certificate was provided). (b) For the purposes of calculating period commencing on the ratios in clauses date on which the initial Term Advance occurs, and continuing until the one (1) year anniversary of such date, the Margins and the Commitment Fee Factor shall be determined from the table below based on Pricing Level IV (2regardless of Borrower’s Leverage Ratio). (c) above and for In the purpose of Section 3.4 and in relation event that, with respect to the delivery period described in clause (a) of this Subsection, the final annual audited financial statements establish that Borrower was not entitled to a reduction in the Margins and/or the Commitment Fee Factor previously granted based upon a Compliance Certificate, Borrower shall, upon written demand by the following rules shall applyAdministrative Agent, pay any excess amount which should have been charged based on such annual audited financial statements. (d) In the event that, with respect to the period described in clause (a) of this Subsection, the Compliance Certificate is not received by Administrative Agent by the Margin Report Deadline, the Margins and the Borrowers shall provide details, satisfactory Commitment Fee Factor for the period commencing on the first Banking Day after the Margin Report Deadline will each be based on Pricing Level V continuing until the fifth Banking Day after such time as Borrower delivers the Compliance Certificate to the Administrative Agent, of after which time the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) Margins and the ratios shall Commitment Fee Factor will be determined as of the last day of each Fiscal Quarter on a rolling four quarter basis based on the such Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA that the Borrowers in respect of the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma Certificate: I < 45% 100.0 basis to include the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma points 0 basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of the mandatory repayments that may be excluded shall be the amount of such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) above.points 20.0 basis points II ³45% < 50% 125.0 basis points 0 basis points 25.0 basis points III ³50% < 55% 150.0 basis points 0 basis points 30.0 basis points IV ³55% < 60% 175.0 basis points 25.0 basis points 35.0 basis points V ³60% 200.0 basis points 25.0 basis points 40.0 basis points

Calculation. For the purposes of calculating the ratios in clauses (1Lessee agrees that, with respect to any payment or indemnity pursuant to Section 7(b)(i) and (2) above and for the purpose of Section 3.4 and in relation hereof, such payment or indemnity shall include an amount payable to the delivery Indemnified Party sufficient to hold such Indemnified Party harmless on an after-tax basis from all Taxes required to be paid by such Indemnified Party with respect to such payment or indemnity under the laws of any federal, state or local government or governmental subdivision or taxing authority in or of the United States of America, including any possession or territory of the United States, or under the laws of any foreign government, taxing authority or governmental subdivision of a Compliance Certificate, the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall be determined as of the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisitionforeign country; provided, that if any Indemnified Party realizes a Compliance Certificate reduction in Taxes not subject to indemnification hereunder (a "tax benefit") by reason of such payment or indemnity (whether such tax benefit shall be delivered lateby means of investment tax credit, foreign tax credit, depreciation deduction or otherwise), such Indemnified Party shall, so long as no Lease Default (of the type described in Section 14.1 or 14.5 of the Lease) or Lease Event of Default shall have occurred or be continuing, pay Lessee (but not be in form and substance satisfactory before Lessee shall have made all payments or indemnities to such Indemnified Party then due under the Operative Agreements) an amount equal to the Credit Facility Lenders sum of such tax benefit plus any other tax benefit realized by such Indemnified Party as the result of any payment made pursuant to this proviso; provided, however, that such payment by an Indemnified Party shall not exceed the aggregate payments by Lessee to such Indemnified Party under Section 7(b)(i) hereof (but any such excess shall be carried forward and shall reduce Lessee's obligation to make any subsequent payments to such Indemnified Party pursuant to Section 7(b) or prove 7(c) hereof). Each such Indemnified Party shall in good faith use reasonable efforts in filing its tax returns and in dealing with taxing authorities to seek and claim any such tax benefit of which it is actually aware or of which it has been given notice. Any Taxes that are imposed on any Indemnified Party as a result of the disallowance or reduction of such tax benefit referred to in the next preceding sentence in a taxable year subsequent to the year of allowance and utilization by such Indemnified Party (including the expiration of any tax credit carryovers or carrybacks of such Indemnified Party that would not otherwise have expired) shall be incorrectindemnifiable pursuant to the provisions of Section 7(b)(i) without regard to Section 7(b)(ii). In determining the amount of any net reduction in Taxes which is attributable to more than one transaction, the Credit Facility Lenders may adjust the calculation based on the information available an Indemnified Party shall be deemed to them; (b) for have utilized its deductions and credits attributable first, to all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, transactions other than leveraged equipment leasing transactions and then to this transaction and all such other leveraged equipment leasing transactions on a disposition pari passu basis. If as a result of any Advance (as hereinafter defined) to an Indemnified Party the aggregate taxes paid or acquisition from a Borrower or another Material Subsidiary, then (i) accrued by such Indemnified Party for any taxable year shall be more than the EBITDA that the Borrowers in respect of the 12-month period following the closing date amount of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include taxes which would have been payable by the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) Indemnified Party had no such Advance been made, and to include annualized interest on any Debt assumed if such increase in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party taxes was not taken into account in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) determining the amount of the mandatory repayments that may Advance, then such increase PARTICIPATION AGREEMENT [N396SW] -22- 28 in taxes will be excluded shall be treated as Taxes for which Lessee must indemnify the Indemnified Party pursuant to this Section 7(b). Upon the final determination of any contest pursuant to Section 7(b)(iv) hereof in respect of any Taxes for which Lessee has made an Advance, the amount of Lessee's obligation shall be determined under this Section 7(b)(iii) as if such Debt so repaid or assumed as shall exceed that portion Advance had not been made. Any obligation of the aforesaid Advance Lessee under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1this Section 7(b) and (2) abovethe Indemnified Party's obligation to repay the Advance will be satisfied first by set off against each other and any difference owing by either party will be paid within 10 days of such final determination.

Calculation. For (a) "Fair Market Value" of any share of Common ----------- ----------------- Stock shall be the fair market value or the entire Common Stock equity interest of the Company taken as a whole, after giving effect to any increase in such value which would result from the Company's receipt of the applicable exercise or option price in respect of all then outstanding Convertible Securities (as defined below) (the "Equity Value"), divided by all the issued and outstanding ------------ shares of Common Stock, together with the number of shares of Common Stock into which any Convertible Securities would be convertible as of the most recent Appraisal Date, without premiums for control or discounts for minority interests or restrictions on transfer, and shall be as of the most recent Appraisal Date and determined with reference to (i) if the Fair Market Value is being - determined for the purposes of calculating Sections 4 or 5, the ratios in clauses (1) most recent Appraisal prior to the date of termination of the Management Stockholder's employment, and (2ii) above and -- if the Fair Market Value is being determined for the purpose of Section 3.4 and in relation 5(g) of the applicable Certificate of Designations, the most recent Appraisal prior to the delivery of a Compliance Certificate, the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, date of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall be determined as of the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect conversion of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted AcquisitionPreferred Stock into Common Stock; provided, however, in the event that if a Compliance Certificate the Equity Value (without giving effect to the conversion of any outstanding shares of Preferred Stock) is less than the aggregate Liquidation Value of all of the outstanding shares of Preferred Stock, then the "Fair Market Value" of such share of Common Stock shall be delivered late, not be in form and substance satisfactory an amount ----------------- equal to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then quotient of (i) the EBITDA excess, if any, of (A) the Equity Value - - (without giving effect to the conversion of any outstanding shares of Preferred Stock) over (B) the aggregate amount, if any, that the Borrowers holders of the Preferred - Stock would have actually received pursuant to the Certificates of Designations in respect of their shares of Preferred Stock if the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA Company had been liquidated as of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed Appraisal Date divided by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect -- aggregate number of issued and outstanding shares of Common Stock, together with the number of shares of Common Stock into which any issued and outstanding Convertible Securities (other than outstanding shares of Preferred Stock) would be convertible as of the 12-month period following most recent Appraisal Date. "Convertible Securities" ---------------------- shall mean any warrants, options, convertible stock or other rights to purchase Common Stock (including the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such dispositionPreferred Stock) for which, in each caseas the most recent Appraisal Date, for the applicable portion value of the 12-month period preceding Common Stock into which such closing date provided thatwarrants, where options, convertible stock or other rights to purchase Common Stock are exercisable or convertible exceeds the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of the mandatory repayments that may be excluded shall be the amount of such Debt so repaid exercise price or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) aboveconversion price therefor.

Calculation. (a) For the purposes of this Clause 24 in respect of any Relevant Period, the exchange rates for determination of Consolidated Net Indebtedness for that Relevant Period shall be (i) with respect to Indebtedness for which the Restricted Group has entered into cross currency swaps, the rate at which such swap has been entered into and (ii) with respect to all other Indebtedness, the exchange rate used in the calculation of Consolidated EBITDA in accordance with paragraph (c) below. (b) For the purposes of Clause 24 (Financial Calculations), the exchange rates used in the calculation of Consolidated EBITDA in respect of any Relevant Period shall be the weighted average exchange rates for the Relevant Period determined in accordance with the Accounting Principles. (c) For the purposes of calculating Consolidated EBITDA under this Agreement for any period, if during such period the ratios in clauses Company or any Restricted Subsidiary (1by merger or otherwise) and (2) above and has made a Permitted Acquisition, the Company shall be permitted to calculate Consolidated EBITDA for the purpose Relevant Period after giving effect to a Pro Forma Adjustment as if such Permitted Acquisition had occurred on the first day of Section 3.4 and in such period. (d) In relation to the delivery of a Compliance Certificate, the following rules shall apply, definitions set out in Clause 24.1 (Financial definitions) and the Borrowers shall provide details, satisfactory to the Administrative Agent, all other related provisions of the EBITDA derived from Subsidiaries that are not Material Subsidiaries:Finance Documents (including this Clause 24.2): (ai) all calculations will be as determined in good faith by the ratios shall be determined as chief financial officer or finance director of the last day Restricted Group (or such other person as is performing the functions of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered chief financial officer or finance director), including in respect of savings and synergies; (ii) all calculations in respect of synergies and savings (in each case actual or anticipated) may be made as though the full run-rate effect of such Fiscal Quarter synergies and savings were realised on the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as first day of the closing relevant period, provided that such cost savings and synergies will cease to be included in any calculation of Consolidated EBITDA as Pro Forma Adjustments once they are (or at any time have proved to not be capable of being) realised or to the extent that they have not been realised within the 12 month period from the date of such disposition or completion of the relevant Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them;and (biii) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisitionnotwithstanding any provision of this Agreement, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA that the Borrowers in respect of the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted any cost synergies and cost savings included on a pro forma basis must comply with the limits contained in the definition of “Pro Forma Adjustment”. (e) In the event that: (i) any Accounting Reference Date is adjusted by the Company for the sole purpose of avoiding an Accounting Reference Date falling on a day which is not a Business Day and/or to include ensure that an Accounting Reference Date falls on a particular day of the week; or (ii) there is any adjustment to a scheduled payment date to avoid payments becoming due on a day which is not a Business Day, if that adjustment results in any amount being paid in a Relevant Period in which it would otherwise not have been paid, for the purpose of calculating any financial definition or ratio under the Finance Documents the Company may treat such amount as if it was paid in the Relevant Period in which it would have been paid save for any such adjustment. (f) Unless a contrary indication appears, a reference to Consolidated EBITDA is to be construed as a reference to the Consolidated EBITDA of the operation comprising Company and its Restricted Subsidiaries on a consolidated basis. (g) In relation to any lease, concession, license of property or other arrangement (or guarantee thereof) which would be considered an operating lease (“Operational Leases”) under the Permitted Acquisition Accounting Principles as applied in the Original Financial Statements (the “Original Accounting Principles”), to the extent such Operational Leases are subsequently treated as a finance lease or exclude capital lease as a result of any change to the EBITDA of the operations disposed of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing treatment of such disposition leases or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance other arrangements under the Revolving FacilityAccounting Principles as opposed to operating leases, then such obligations shall be, unless the Company elects otherwise, treated in accordance with the Original Accounting Principles. (h) Notwithstanding any other term of any Finance Document, any Short-Term Shareholder Funding shall be excluded from cash or Cash Equivalents for the purposes of this subclause calculating Consolidated Net Indebtedness (ii) the amount of the mandatory repayments that may be excluded shall be the amount of such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12avoidance of doubt, only so long as it constitutes Short-month period to demonstrate compliance Term Shareholder Funding in accordance with clauses (1) and (2) abovethe definition thereof).

Calculation. For (a) In partial consideration for granting the purposes license pursuant to Section 2.1 of calculating this Agreement, UCB shall pay to SEPRACOR a running royalty at the ratios rates set out in clauses Schedule 3.1 hereto calculated as a percentage of the total NET SALES of MONO-PRODUCT. Royalties shall be payable on sales of MONO-PRODUCT in each country of the TERRITORY in which the SEPRACOR BASIC PATENTS have been granted at the time of such sale. Royalties shall be payable until such time as the SEPRACOR BASIC PATENT expires in the country in question or is held invalid or unenforceable in such country in a binding decision from which no appeal has been taken or from which no appeal has been taken in the time allowed for appeal, subject to the following two sentences. If the SEPRACOR BASIC PATENT is held invalid or unenforceable in a country of the Territory, and if an independent third party generic equivalent of MONO-PRODUCT is legally introduced in such country, the royalty obligation of this Section 3.1(a) shall be suspended as to such MONO-PRODUCT in such country. If SEPRACOR successfully appeals against the decision which holds the SEPRACOR BASIC PATENT invalid or unenforceable, UCB shall upon notification of such appeals decision retroactively pay to SEPRACOR royalties on the sales during the time period from the suspension of the royalty obligation until the appeals decision. (1b) In partial consideration for granting the license pursuant to Section 2.1 of this Agreement, UCB shall pay to SEPRACOR a running royalty at the rates set out in Schedule 3.1 hereto calculated as a percentage of the total NET SALES of PATENT COMBINATON PRODUCT as follows: Royalties shall be payable on NET SALES of PATENT COMBINATION PRODUCT in each country of the TERRITORY in which such claim of the SEPRACOR COMBINATION PATENTS has been granted at the time of such sale. Royalties shall be payable until such time as the SEPRACOR COMBINATION PATENT expires in the country in question or is held invalid or unenforceable in such country in a binding decision from which no appeal has been taken or from which no appeal has been taken in the time allowed for appeal, subject to the following two sentences. If a SEPRACOR COMBINATION PATENT covering a PATENT COMBINATION PRODUCT is held invalid or unenforceable in a country of the TERRITORY, and if an independent third party generic equivalent of the PATENT COMBINATION PRODUCT is legally introduced in such country, the royalty obligation of this Section 3.1(b) shall be suspended as to such product in such country. If SEPRACOR successfully appeals against the decision which holds the SEPRACOR COMBINATION PATENTS invalid or unenforceable, UCB shall upon notification of such appeals decision retroactively pay to SEPRACOR royalties on the sales during the time period from the suspension of the royalty obligation until the appeals decision. The full amount of NET SALES of PATENT COMBINATION PRODUCT shall be subject to the royalty obligation of this Section 3.1(c). Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. (c) As regards COMBINATION PRODUCT containing ACTIVE INGREDIENT and pseudoephedrine as the sole active substances, the royalty obligation of Section 3.1 (a) shall apply to [**] of the full amount of NET SALES of such PRODUCT. (d) As regards COMBINATION PRODUCT other than the ones referred to under points (b) and (2c) above and for of this Section 3.1, the purpose royalty obligation of Section 3.4 and in relation to the delivery of a Compliance Certificate, the following rules 3.1 (a) shall apply, and the Borrowers shall provide details, satisfactory NET SALES subject to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios royalty rate set forth in Schedule 3.1 shall be determined as calculated by multiplying number of grams of ACTIVE INGREDIENT in the last day COMBINATION PRODUCT by the weighted average Net Sales price of each Fiscal Quarter on a rolling four quarter basis based on gram of ACTIVE INGREDIENT sold in the Compliance Certificate delivered form of MONO-PRODUCT in respect the country of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisitionsale; provided, however, that if a Compliance Certificate MONO-PRODUCT is not available in the country of sale, the full amount of NET SALES of such COMBINATION PRODUCT shall be delivered late, not be in form and substance satisfactory subject to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA that the Borrowers royalty rate set forth in respect of the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of the mandatory repayments that may be excluded shall be the amount of such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed ofSchedule 3.1. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) above".

Calculation. For the purposes of calculating the ratios in clauses (1Lessee agrees that, with respect to any payment or indemnity pursuant to Section 7(b)(i) and (2) above and for the purpose of Section 3.4 and in relation hereof, such payment or indemnity shall include an amount payable to the delivery Indemnified Party sufficient to hold such Indemnified Party harmless on an after-tax basis from all Taxes required to be paid by such Indemnified Party with respect to such payment or indemnity under the laws of any federal, state or local government or governmental subdivision or taxing authority in or of the United States of America, including any possession or territory of the United States, or under the laws of any foreign government, taxing authority or governmental subdivision of a Compliance Certificate, the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall be determined as of the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisitionforeign country; provided, that if any Indemnified Party realizes a Compliance Certificate reduction in Taxes not subject to indemnification hereunder (a "tax benefit") by reason of such payment or indemnity (whether such tax benefit shall be delivered lateby means of investment tax credit, foreign tax credit, depreciation deduction or otherwise), such Indemnified Party shall, so long as no Lease Default (of the type described in Section 14.1 or 14.5 of the Lease) or Lease Event of Default shall have occurred or be continuing, pay Lessee (but not be in form and substance satisfactory before Lessee shall have made all payments or indemnities to such Indemnified Party then due under the Operative Agreements) an amount equal to the Credit Facility Lenders sum of such tax benefit plus any other tax benefit realized by such Indemnified Party as the result of any payment made pursuant to this proviso; provided, however, that such payment by an Indemnified Party shall not exceed the aggregate payments by Lessee to such Indemnified Party under Section 7(b)(i) hereof (but any such excess shall be carried forward and shall reduce Lessee's obligation to make any subsequent payments to such Indemnified Party pursuant to Section 7(b) or prove 7(c) hereof). Each such Indemnified Party shall in good faith use reasonable efforts in filing its tax returns and in dealing with taxing authorities to seek and claim any such tax benefit of which it is actually aware or of which it has been given notice. Any Taxes that are imposed on any Indemnified Party as a result of the disallowance or reduction of such tax benefit referred to in the next preceding sentence in a taxable year subsequent to the year of allowance and utilization by such Indemnified Party (including the expiration of any tax credit carryovers or carrybacks of such Indemnified Party that would not otherwise have expired) shall be incorrectindemnifiable pursuant to the provisions of Section 7(b)(i) without regard to Section 7(b)(ii). In determining the amount of any net reduction in Taxes which is attributable to more than one transaction, the Credit Facility Lenders may adjust the calculation based on the information available an Indemnified Party shall be deemed to them; (b) for have utilized its deductions and credits attributable first, to all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, transactions other than leveraged equipment leasing transactions and then to this transaction and all such other leveraged equipment leasing transactions on a disposition pari passu basis. If as a result of any Advance (as hereinafter defined) to an Indemnified Party the aggregate taxes paid or acquisition from a Borrower or another Material Subsidiary, then (i) accrued by such Indemnified Party for any taxable year shall be more than the EBITDA that the Borrowers in respect of the 12-month period following the closing date amount of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include taxes which would have been payable by the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) Indemnified Party had no such Advance been made, and to include annualized interest on any Debt assumed if such increase in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party taxes was not taken into account in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) determining the amount of the mandatory repayments that may Advance, then such increase PARTICIPATION AGREEMENT [N397SW] -22- 28 in taxes will be excluded shall be treated as Taxes for which Lessee must indemnify the Indemnified Party pursuant to this Section 7(b). Upon the final determination of any contest pursuant to Section 7(b)(iv) hereof in respect of any Taxes for which Lessee has made an Advance, the amount of Lessee's obligation shall be determined under this Section 7(b)(iii) as if such Debt so repaid or assumed as shall exceed that portion Advance had not been made. Any obligation of the aforesaid Advance Lessee under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1this Section 7(b) and (2) abovethe Indemnified Party's obligation to repay the Advance will be satisfied first by set off against each other and any difference owing by either party will be paid within 10 days of such final determination.

Calculation. For As promptly as practicable, but in no event later than sixty (60) days following the purposes end of calculating the ratios in clauses (1) and (2) above and for the purpose of Section 3.4 and in relation to the delivery of a Compliance CertificateYear Three, the following rules shall applySurviving Corporation shall, and the Borrowers shall provide detailsat its expense, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall be determined as of the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) cause to be prepared a statement (the “Earn-Out Amount Statement”) setting forth in reasonable detail the Surviving Corporation’s calculation of EBITDA that for Year Three and the Borrowers final Earn-Out Amount, giving effect to any Fold-In Acquisitions consummated during the Earn-Out Period in respect of the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection accordance with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such dispositionSection 2.10, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) deliver to Xxxxx X. Xxxxxx, as representative for the Cash Interest Coverage Ratio in respect Earn-Out Equityholders, the Earn-Out Amount Statement. For purposes of this subsection (h), references to “Xxxxx X. Xxxxxx” shall include any Earn-Out Equityholder that replaces or succeeds Xxxxx X. Xxxxxx as the Earn-Out Equityholders’ representative under this subsection (h). (i) During Year Three, the Surviving Corporation shall provide Xxxxx X. Xxxxxx and any accountants or advisors retained by Xxxxx X. Xxxxxx with full access to the books and records of the 12Surviving Corporation for the purposes of: (A) enabling Xxxxx X. Xxxxxx and the retained accountants and advisors to calculate, and to review the Surviving Corporation’s calculation of, EBITDA and the Earn-month Out Amount; and (B) identifying any dispute related to the calculation of EBITDA or the Earn-Out Amount in the Earn-Out Amount Statement. The reasonable fees and expenses of any such accountants and advisors retained by Xxxxx X. Xxxxxx shall be paid by the Earn-Out Equityholders and not Parent or the Surviving Corporation. (ii) If Xxxxx X. Xxxxxx disputes the calculation of EBITDA or the Earn-Out Amount set forth in the Earn-Out Amount Statement, then Xxxxx X. Xxxxxx shall deliver a written notice (an “Earn-Out Amount Dispute Notice”) to the Surviving Corporation at any time during the sixty (60) day period following commencing upon receipt by Xxxxx X. Xxxxxx of the closing Earn-Out Amount Statement (subject to extension for any period of inadequate access to the underlying records) (the “Earn-Out Amount Review Period”). The Earn-Out Amount Dispute Notice shall set forth the basis for the dispute of any such calculation in reasonable detail. (iii) If Xxxxx X. Xxxxxx does not deliver an Earn-Out Amount Dispute Notice to the Surviving Corporation prior to the expiration of the Earn-Out Amount Review Period, the Surviving Corporation’s calculation of EBITDA and the Earn-Out Amount set forth in the Earn-Out Amount Statement shall be deemed final and binding on Parent, the Surviving Corporation, Xxxxx X. Xxxxxx and the Earn-Out Equityholders for all purposes of this Agreement. (iv) If Xxxxx X. Xxxxxx delivers an Earn-Out Amount Dispute Notice to the Surviving Corporation prior to the expiration of the Earn-Out Amount Review Period, then Xxxxx X. Xxxxxx and the Surviving Corporation shall use commercially reasonable efforts to reach agreement on the portions of the EBITDA and Earn-Out Amount calculation which were timely disputed in the Earn-Out Amount Dispute Notice. Except to the extent set forth in an Earn-Out Amount Dispute Notice timely delivered, the Surviving Corporation’s calculation of EBITDA and the Earn-Out Amount set forth in the Earn-Out Amount Statement shall be deemed final and binding on Parent, the Surviving Corporation, Xxxxx X. Xxxxxx and the Earn-Out Equityholders in all other respects for all purposes of this Agreement. If Xxxxx X. Xxxxxx and the Surviving Corporation are unable to reach agreement on disputed portions of the EBITDA and/or the Earn-Out Amount calculations set forth in the Earn-Out Amount Statement within thirty (30) days after the end of the Earn-Out Amount Review Period, the parties shall refer such dispute and submit their related workpapers to the Accounting Firm after such 30th day. In connection with the resolution of any such dispute by the Accounting Firm: (A) each of the Surviving Corporation and Xxxxx X. Xxxxxx shall have a reasonable opportunity to make written submissions in support of its position to the Accounting Firm, and meet with the Accounting Firm to provide its views as to any disputed issues with respect to the calculation of EBITDA and/or the Earn-Out Amount; (B) each of the Surviving Corporation and the Equityholders’ Representative shall promptly provide, or cause to be provided, to the Accounting Firm all information, and to make available to the Accounting Firm its personnel, as are reasonably necessary to permit the Accounting Firm to resolve such disputes; (C) the Accounting Firm shall determine EBITDA and the Earn-Out Amount in accordance with the terms of this Agreement within thirty (30) days of such disposition or Permitted Acquisition referral and upon reaching such determination shall thereupon deliver a copy of its calculations (the “Earn-Out Amount Expert Calculations”) to Xxxxx X. Xxxxxx and Surviving Corporation Agent; and (D) the determination made by the Accounting Firm of EBITDA and the Earn-Out Amount shall be adjusted final and binding on a pro forma basis Parent, the Surviving Corporation, Xxxxx X. Xxxxxx and the Earn-Out Equityholders for all purposes of this Agreement, absent manifest error. In calculating EBITDA and the Earn-Out Amount, (x) the Accounting Firm shall be limited to include or exclude annualized Cash Interest on Debt assumed addressing any particular disputes referred to in connection therewith or any Debt repaid or assumed the Earn-Out Amount Dispute Notice and (y) each such amount shall be no greater than the higher corresponding amount calculated by a third party Xxxxx X. Xxxxxx and the Surviving Corporation, as the case may be, and no lower than the lower corresponding amount calculated by Xxxxx X. Xxxxxx and the Surviving Corporation, as the case may be. The Earn-Out Amount Expert Calculations shall reflect in connection with such dispositiondetail the differences, if any, between EBITDA and the Earn-Out Amount reflected therein and EBITDA and the Earn-Out Amount set forth in each case, for the applicable portion Earn-Out Amount Statement. The fees and expenses of the 12-month period preceding such closing date provided that, where Accounting Firm shall be borne by the operations disposed Surviving Corporation and Xxxxx X. Xxxxxx in proportion to how close each party’s position was to the determination of were previously acquired using the proceeds of an Advance under the Revolving Facility, then Accounting Firm. All negotiations pursuant to this subsection (g) shall be treated as compromise and settlement negotiations for the purposes of this subclause (ii) the amount Rule 408 of the mandatory repayments that may be excluded Federal Rules of Evidence and comparable state rules of evidence, and all submissions to the Accounting Firm shall be treated as confidential information. (v) The Surviving Corporation shall, no later than one Business Day after the final determination of EBITDA and the Earn-Out Amount in accordance with this subsection (g) by delivery of immediately available funds to each Earn-Out Equityholder, an amount of such Debt so repaid or assumed as shall exceed that portion equal to the product of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisitionfinal Earn-Out Amount multiplied by a fraction, the Borrowers will provide numerator of which is the Administrative Agent with EBITDA number of shares of Company Common Stock held by such Earn-Out Equityholder as of the Closing Date, and Cash Interest projections for the next 12denominator of which is the total number of shares of Company Common Stock held by all Earn-month period to demonstrate compliance with clauses (1) and (2) aboveOut Equityholders as of the Closing Date.

Calculation. For the purposes of calculating the ratios in clauses (1Lessee agrees that, with respect to any payment or indemnity pursuant to Section 7(b)(i) and (2) above and for the purpose of Section 3.4 and in relation hereof, such payment or indemnity shall include an amount payable to the delivery Indemnified Party sufficient to hold such Indemnified Party harmless on an after-tax basis from all Taxes required to be paid by such Indemnified Party with respect to such payment or indemnity under the laws of any federal, state or local government or governmental subdivision or taxing authority in or of the United States of America, including any possession or territory of the United States, or under the laws of any foreign government, taxing authority or governmental subdivision of a Compliance Certificate, the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall be determined as of the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisitionforeign country; provided, that if any Indemnified Party realizes a Compliance Certificate reduction in Taxes not subject to indemnification hereunder (a "tax benefit") by reason of such payment or indemnity (whether such tax benefit shall be delivered lateby means of investment tax credit, foreign tax credit, depreciation deduction or otherwise), such Indemnified Party shall, so long as no Lease Default (of the type described in Section 14.1 or 14.5 of the Lease) or Lease Event of Default shall have occurred or be continuing, pay Lessee (but not be in form and substance satisfactory before Lessee shall have made all payments or indemnities to such Indemnified Party then due under the Operative Agreements) an amount equal to the Credit Facility Lenders sum of such tax benefit plus any other tax benefit realized by such Indemnified Party as the result of any payment made pursuant to this proviso; provided, however, that such payment by an Indemnified Party shall not exceed the aggregate payments by Lessee to such Indemnified Party under Section 7(b)(i) hereof (but any such excess shall be carried forward and shall reduce Lessee's obligation to make any subsequent payments to such Indemnified Party pursuant to Section 7(b) or prove 7(c) hereof). Each such Indemnified Party shall in good faith use reasonable efforts in filing its tax returns and in dealing with taxing authorities to seek and claim any such tax benefit of which it is actually aware or of which it has been given notice. Any Taxes that are imposed on any Indemnified Party as a result of the PARTICIPATION AGREEMENT [N604SW] -20- 26 disallowance or reduction of such tax benefit referred to in the next preceding sentence in a taxable year subsequent to the year of allowance and utilization by such Indemnified Party (including the expiration of any tax credit carryovers or carrybacks of such Indemnified Party that would not otherwise have expired) shall be incorrectindemnifiable pursuant to the provisions of Section 7(b)(i) without regard to Section 7(b)(ii). In determining the amount of any net reduction in Taxes which is attributable to more than one transaction, the Credit Facility Lenders may adjust the calculation based on the information available an Indemnified Party shall be deemed to them; (b) for have utilized its deductions and credits attributable first, to all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, transactions other than leveraged equipment leasing transactions and then to this transaction and to all such other leveraged equipment leasing transactions on a disposition pari passu basis. If as a result of any Advance (as hereinafter defined) to an Indemnified Party the aggregate taxes paid or acquisition from a Borrower or another Material Subsidiary, then (i) accrued by such Indemnified Party for any taxable year shall be more than the EBITDA that the Borrowers in respect of the 12-month period following the closing date amount of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include taxes which would have been payable by the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) Indemnified Party had no such Advance been made, and to include annualized interest on any Debt assumed if such increase in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party taxes was not taken into account in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) determining the amount of the mandatory repayments that may Advance, then such increase in taxes will be excluded shall be treated as Taxes for which Lessee must indemnify the Indemnified Party pursuant to this Section 7(b). Upon the final determination of any contest pursuant to Section 7(b)(iv) hereof in respect of any Taxes for which Lessee has made an Advance, the amount of Lessee's obligation shall be determined under this Section 7(b)(iii) as if such Debt so repaid or assumed as shall exceed that portion Advance had not been made. Any obligation of the aforesaid Advance Lessee under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1this Section 7(b) and (2) abovethe Indemnified Party's obligation to repay the Advance will be satisfied first by set off against each other and any difference owing by either party will be paid within 10 days of such final determination.

Calculation. For (a) "Fair Market Value" of any share of Common Stock ----------- ----------------- shall be the fair market value or the entire Common Stock equity interest of the Company taken as a whole, after giving effect to any increase in such value which would result from the Company's receipt of the applicable exercise or option price in respect of all then outstanding Convertible Securities (as defined below) (the "Equity Value"), divided by all the issued and outstanding ------------ shares of Common Stock, together with the number of shares of Common Stock into which any Convertible Securities would be convertible as of the most recent Appraisal Date, without premiums for control or discounts for minority interests or restrictions on transfer, and shall be as of the most recent Appraisal Date and determined with reference to (i) if the Fair Market Value is being - determined for the purposes of calculating Sections 4 or 5, the ratios in clauses (1) most recent Appraisal prior to the date of termination of the Management Stockholder's employment, and (2ii) above and -- if the Fair Market Value is being determined for the purpose of Section 3.4 and in relation 5(g) of the applicable Certificate of Designations, the most recent Appraisal prior to the delivery of a Compliance Certificate, the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, date of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall be determined as of the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect conversion of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted AcquisitionPreferred Stock into Common Stock; provided, however, in the event that if a Compliance Certificate the Equity Value (without giving effect to the conversion of any outstanding shares of Preferred Stock) is less than the aggregate Liquidation Value of all of the outstanding shares of Preferred Stock, then the "Fair Market Value" of such share of Common Stock shall be delivered late, not be in form and substance satisfactory an amount ----------------- equal to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then quotient of (i) the EBITDA excess, if any, of (A) the Equity Value - - (without giving effect to the conversion of any outstanding shares of Preferred Stock) over (B) the aggregate amount, if any, that the Borrowers holders of the Preferred - Stock would have actually received pursuant to the Certificates of Designations in respect of their shares of Preferred Stock if the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA Company had been liquidated as of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed Appraisal Date divided by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect aggregate number of issued and -- outstanding shares of Common Stock, together with the number of shares of Common Stock into which any issued and outstanding Convertible Securities (other than outstanding shares of Preferred Stock) would be convertible as of the 12-month period following most recent Appraisal Date. "Convertible Securities" shall mean any warrants, ---------------------- options, convertible stock or other rights to purchase Common Stock (including the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such dispositionPreferred Stock) for which, in each caseas the most recent Appraisal Date, for the applicable portion value of the 12-month period preceding Common Stock into which such closing date provided thatwarrants, where options, convertible stock or other rights to purchase Common Stock are exercisable or convertible exceeds the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of the mandatory repayments that may be excluded shall be the amount of such Debt so repaid exercise price or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) aboveconversion price therefor.

Calculation. (a) The covenants contained in Clauses 16.7(a) (Interest Cover), 16.7(b) (Cashflow/Total Debt Service), 16.7(c) (Leverage) and 16.7(d) (Minimum Cashflow) will be tested on a rolling aggregate basis for the immediately preceding twelve months ending on each of the dates specified in the relevant Column A, provided that in respect of any covenant testing date falling less than 12 months after the Completion Date Net Total Interest shall be calculated by multiplying Net Total Interest for the period from the Completion Date up to and including the relevant covenant testing date (the "Calculation Period") by A/B, where A = 12 and B = the number of months in the relevant Calculation Period. (b) The covenants contained in Clause 16.7 (Financial Covenants) will be tested by reference to the accounts delivered to the Facility Agent under Clause 16.6(d)(ii) (Financial Statements) for the relevant Accounting Quarter unless in any such case the audited accounts required to be delivered to the Facility Agent pursuant to Clause 16.6(d)(i) (Financial Statements) for the relevant period or any part thereof are available on the relevant date on which any such covenant is tested, in which case such audited accounts shall be used instead. (c) If the audited accounts are not available when the covenant is tested but when such audited accounts become available the audited accounts demonstrate that the figures in any relevant quarterly accounts utilised for any such calculation cannot have been substantially accurate then the Facility Agent shall require such adjustment to the calculations to be made as it, in good faith, considers appropriate to rectify such inaccuracy and compliance with the covenants in Clause 16.7 (Financial Covenants) will be determined by reference to such adjusted figures. (d) For the purposes of calculating compliance with the ratios covenants in clauses Clause 16.7 (1Covenants): (i) all Financial Indebtedness incurred by any member of the Group in connection with China Project Newco and the China Project (including Financial Indebtedness incurred by the Parent under the CDC DDBs Documents) and all interest, costs and expenses associated therewith shall not be included; and (2ii) above China Project Newco and for the purpose China Project shall not be included as members of Section 3.4 and in relation to the delivery of a Compliance Certificate, the following rules shall applyGroup, and the Borrowers relevant definitions in Clause 16.9 (Financial Definitions) shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries:be construed accordingly. (ae) the ratios shall be determined as of the last day The components of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered definition used in respect of such Fiscal Quarter and the ratios so determined shall Clause 16.7 will be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, calculated in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA that the Borrowers in respect of the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection accordance with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of the mandatory repayments that may be excluded shall be the amount of such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) aboveCompletion Accounting Principles.

Calculation. (a) The covenants contained in Clauses 16.7(a) (Senior Debt Coverage Ratio), 16.7(b) (Fixed Charge Cover Ratio), 16.7(c) (Interest Cover Ratio) and 16.7(d) (Leverage Ratio) will be tested on a rolling aggregate basis for the immediately preceding twelve months ending on each of the dates specified in the relevant Column A, provided that in respect of any covenant testing date falling less than 12 months after the Yell Completion Date: (i) Net Cash Interest Payable shall be calculated by multiplying Net Cash Interest Payable for the period from the Completion Date up to and including the relevant covenant testing date (the “Calculation Period”) by A/B, where A = 365 and B = the number of days in the Calculation Period; and (ii) the relevant figures for Total Debt Service shall be calculated by multiplying the actual figure for Total Debt Service for the Calculation Period by A/B, where A = 365 and B = the number of days in the Calculation Period. (iii) The covenants contained in Clause 16.7 (Financial Covenants) will be tested by reference to the accounts delivered to the Facility Agent under Clause 16.6(d)(ii) (Financial Statements) for the relevant Accounting Quarter (and to the extent necessary for any covenant testing date falling less than twelve months after the Yell Completion Date, the Latest Yell Audited Accounts and the Latest Yell Management Accounts) unless in any such case the audited accounts required to be delivered to the Facility Agent pursuant to Clause 16.6(d)(i) (Financial Statements) for the relevant period or any part thereof are available on the relevant date on which any such covenant is tested, in which case such audited accounts shall be used instead. (b) If the audited accounts are not available when the covenant is tested but when such audited accounts become available the audited accounts demonstrate that the figures in any relevant quarterly accounts utilised for any such calculation cannot have been substantially accurate then the Facility Agent shall require such adjustment to the calculations to be made as it, in good faith, considers appropriate to rectify such inaccuracy and compliance with the covenants in Clause 16.7 (Financial Covenants) will be determined by reference to such adjusted figures. (c) The components of each definition used in Clause 16.7 (Financial Covenants) will be calculated in accordance with Completion Accounting Principles as varied by this Agreement. (d) For the purposes of calculating EBITDA in connection with the ratios Leverage Ratio in clauses Clause 16.7(d) (1Leverage Ratio) and for any testing period ending with the Accounting Quarter ending on or about 31 March, 2002 or any earlier Accounting Quarter, EBITDA for that period shall be plus, to the extent deducted, (2i) above and for the purpose of Section 3.4 and amount actually expended in relation to the delivery of a Compliance Certificate, items identified in the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: Yell Reports (described at paragraph (a) the ratios shall be determined as of the last day definition of each Fiscal Quarter on a rolling four quarter basis based on Yell Reports) prepared by PricewaterhouseCoopers dated 27 April 2001, as “US Prototype Expenses” incurred in relation to the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as United States business of the closing date of such disposition or Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based Group (as set out on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA that the Borrowers in respect of the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management feespage 10 thereof) and to include annualized interest product development costs included within “other New Media overhead costs” (as set out on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date page 135 thereof) and (ii) the Cash Interest Coverage Ratio amount actually expended as lease payments under a sale and leaseback of the car fleet as identified on page 10 of such draft PricewaterhouseCoopers Reports (but each such addition shall not exceed in relation to any period the amount specified for such items in relation to that period in such pages of such PricewaterhouseCoopers Reports). (e) For the purposes of calculating EBITDA in respect of the 12-any 12 month period following (the closing “current 12 month period”): (i) if an Annual Directory which is last published during the last month of such disposition or Permitted Acquisition shall thereupon be adjusted the 12 month period ending immediately preceding the current 12 month period is not published during the current 12 month period but is published on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for date falling not more than 30 days after the applicable portion last day of the 12-current 12 month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facilityperiod, then for the purposes current 12 month period and the 12 month period commencing immediately after the current 12 month period it shall be accounted for as if it had been published on the last day of this subclause the current 12 month period; and (ii) if an Annual Directory is published twice during the amount current 12 month period, the first such publication shall be accounted for as if it had been published on the last day of the mandatory repayments that may be excluded shall be the amount of such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-12 month period to demonstrate compliance with clauses (1) and (2) aboveimmediately preceding the current 12 month period.

Calculation. For the purposes of calculating the ratios in clauses (1) and (2) above and for the purpose of Section 3.4 and in relation Subject to the delivery terms and provisions of a Compliance Certificatethis Agreement, as of the Final Time, the Employee will become entitled to receive from the Employer, at the Manager Payment Time, a one-time payment (the “Profit-Sharing Payment”) in an Amount equal to (x) the Final Manager Amount minus (y) the Offset Amount. If the Offset Amount is greater than the Final Manager Amount, then Isthmus or the Employee shall pay to the Employer, within five (5) business days following rules the Employee’s receipt of written notice from the Employer, an Amount equal to the Excess Amount, which payment obligations shall applyconstitute full recourse liability debt of Isthmus and the Employee. In the event that the Employee does not deliver the Excess Amount, if any, to the Employer in a timely manner, the Employer shall be entitled to withhold the Excess Amount from the Co-Investment Amount, and the Borrowers shall provide details, satisfactory to the Administrative Agent, portion of the EBITDA derived Excess Amount withheld from Subsidiaries that are not Material Subsidiaries: (a) the ratios each Fund shall be determined as in the Employer’s reasonable discretion. The Final Manager Amount, the Offset Amount, the Excess Amount, the Co-Investment Amount, and each of the last day of each Fiscal Quarter on a rolling four quarter basis based on components thereof, will be Calculated in accordance with the Compliance Certificate delivered in respect of such Fiscal Quarter and hypothetical examples attached hereto as Schedule I. Notwithstanding the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarterforegoing, in which the case of a termination of this Agreement for any reason (including as a result of Employee’s death or disability) other than (x) a termination by the ratios shall be adjusted Employer for Cause as a result of the closing date Employee’s conviction of such disposition a felony or (y) a resignation by the Employee other than by means of a Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrectResignation, the Credit Facility Lenders may adjust Employee (or, in the calculation based on case of Employee's death or disability, his estate or representative) shall have the information available right to them; elect that all (bbut not less than all) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA that the Borrowers in respect of the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of remaining Mesa Positions and River Positions (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such dispositionincluding, in each case, for the applicable portion any Mesa Position or River Position that constitutes a Large Position as of the 12-month time of such termination) shall remain in the Mesa Portfolio and the River Portfolio, respectively, through the Cessation Time, but the Employee must exercise this right by providing the Employer irrevocable written notice thereof within two (2) business days (or in the event of his death or disability, within a reasonable period preceding of time such closing date and (ii) the Cash Interest Coverage Ratio in respect that his executor and/or guardian may make such election upon notice of the 12-month period Employer) following such termination (any such notice delivered by the closing Employee (or, in the case of Employee's death or disability, his estate or representative) shall be referred to as the “Ride Notice”; the companies that issued the Securities comprising such disposition or Permitted Acquisition remaining Mesa Positions and River Positions shall thereupon be adjusted on a pro forma basis referred to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with as “Ride Companies”; and such dispositionremaining Mesa Positions and River Positions (including, in each case, for any Large Positions), together with any and all additional Securities issued by any Ride Companies that are purchased by the applicable portion Funds following such termination and prior to the Term End, shall be referred to as the “Ride Positions”). If the Employee (or, in the case of Employee's death or disability, his estate or representative) delivers timely a Ride Notice to the Employer, then all of the 12Ride Positions shall remain in the Mesa Portfolio and the River Portfolio, respectively, through the Cessation Time, and the Employer shall be permitted, but shall be under no obligation, to Sell any or all of the Ride Positions, at any time and from time to time, and the timing and manner of all such Sales may be conducted at the discretion of the Employer. If mutually agreed by the Employee and the Employer, in lieu of cash, the Profit-month period preceding such closing date provided thatSharing Payment (or any portion thereof) may be made via the delivery of Mesa Positions and /or River Positions. For the avoidance of doubt, where neither Isthmus nor the operations disposed Employee is entitled to any Profit-Sharing Payment or other Amounts on any profit, investment, position or transaction that is made prior to the Execution Time or which occurs outside the Mesa Portfolio and the River Portfolio, and only investments that are allocated to the Mesa Portfolio or the River Portfolio in accordance with the terms of were previously acquired using this Agreement (other than investments included in the proceeds of an Advance under the Revolving Facility, then Co-Investment Portfolio) shall be utilized for the purposes of this subclause (ii) Calculating the amount of Final Manager Amount and the mandatory repayments that may be excluded shall be the amount of such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) abovecomponents thereof.

Calculation. For the purposes of calculating the ratios in clauses (1) and (2) above and for the purpose of Section 3.4 and in relation to the delivery of a Compliance Certificate, the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) Prior to the ratios Closing, the Sellers delivered to Buyer a written statement (the “Estimated Adjustment Statement”) setting forth the Sellers’ good faith estimate of Inventory Value (the “Estimated Inventory Value”) along with reasonable supporting detail therefor. (b) As soon as practicable, but no event later than sixty (60) days after the Closing Date, Buyer shall prepare in good faith and deliver or cause to be determined as so prepared and delivered to the Sellers a statement (the “Proposed Inventory Statement”), setting forth, in reasonable detail, Buyer’s calculation of the last day Inventory Value, including the components thereof and reasonable supporting documentation therefor in a manner consistent with the definition of each Fiscal Quarter on a rolling four quarter Inventory Value and determined in accordance with the Accounting Methodologies. (c) After receipt of the Proposed Inventory Statement, the Sellers shall have forty-five (45) days to review the Proposed Inventory Statement, together with any work papers used in the preparation thereof and other documentation supporting the basis based on of Buyer’s determination of the Compliance Certificate delivered Proposed Inventory Statement reasonably necessary and requested by the Sellers to evaluate the Proposed Inventory Statement. During such forty-five (45)-day period, Buyer shall upon reasonable advance notice, provide the Sellers and their Affiliates and their respective Representatives with reasonable access during normal business hours and without unreasonable interference with Buyer’s operations to the books, records (including historical financial information relating to the Proposed Inventory Statement to the extent in respect Buyer’s possession, custody or control) and Representatives of such Fiscal Quarter Buyer as may be reasonably requested by the Sellers or their Affiliates or their respective Representatives to evaluate the Proposed Inventory Statement (and the ratios so determined calculations and information therein) and, if applicable, to prepare a written notice of any dispute regarding the Proposed Inventory Statement or any of the calculations or information therein (a “Dispute Notice”). If either Seller does not deliver a Dispute Notice to Buyer within forty-five (45) days after receipt of the Inventory Statement, the Proposed Inventory Statement shall be deemed the “Final Inventory Statement” for all purposes hereunder. Prior to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during end of such Fiscal Quarterforty-five (45)-day period, the Sellers may accept the Proposed Inventory Statement by delivering written notice to that effect to Buyer, in which case the ratios Proposed Inventory Statement shall be adjusted as of deemed the closing date of such disposition or Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) “Final Inventory Statement” for all purposes if hereunder when such notice is received by Buyer. If either Seller delivers a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition Dispute Notice to or acquisition from a Borrower or another Material SubsidiaryBuyer within such forty-five (45)-day period, then the Sellers and Buyer shall negotiate in good faith to resolve such all disputes in such Dispute Notice during the thirty (30)-day period commencing on the date Buyer receives the Dispute Notice from such Seller. Any Dispute Notice delivered pursuant to this Section 6.1(c) shall specify in reasonable detail all disputes and objections either Seller has with the Proposed Inventory Statement (or the calculations or information therein). If the Sellers and Buyer do not agree upon a final resolution with respect to all items included in the Dispute Notice within such thirty (30)-day period, then the remaining items in dispute (the “Disputed Items”) shall be submitted promptly for resolution to an independent, nationally recognized U.S. accounting firm reasonably acceptable to the Sellers and Buyer (the “Consultant”). Buyer and the Sellers shall each (i) promptly enter into a customary engagement letter with the EBITDA Consultant in which the scope of the Consultant’s engagement will be specified in reasonable detail in a manner consistent with this Agreement, (ii) instruct the Consultant that a written determination (which shall contain the underlying reasoning and calculations) of the Consultant with respect to all of the Disputed Items and the final determination of the Proposed Inventory Statement as a result of the resolution of such Disputed Items shall be completed and distributed to Buyer and the Sellers within forty-five (45) days after the engagement of the Consultant, and (iii) instruct the Consultant that the Borrowers in respect resolution and determination of the 12-month period following Disputed Items shall be based solely on the closing date applicable definitions and provisions of such disposition this Agreement related to the Inventory Value, the Proposed Inventory Statement, the Dispute Notice and on written submissions, responses and presentations by the Sellers and Buyer (or Permitted Acquisition their respective Representatives), and not based on independent review by the Consultant. Buyer and the Sellers shall, and shall thereupon be adjusted on cause their respective Affiliates to, make a pro forma basis written submission to include the EBITDA Consultant, provide a written response to the written submission of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management feesother Party(ies) and make their financial and other books and records reasonably available to include annualized interest on any Debt assumed the Consultant as reasonably requested by the Consultant in connection with its resolution of the Disputed Items and determination and finalization of the Proposed Inventory Statement. The Parties shall instruct the Consultant that it shall under no circumstances be permitted to resolve (A) any disputes other than the Disputed Items or (B) any disputes regarding the scope of the disputes to be resolved by the Consultant pursuant to this Section 6.1(c). The Parties shall instruct the Consultant that in resolving the Disputed Items the Consultant shall (1) act as an expert and not an arbitrator, (2) make an independent calculation of the amount of each Disputed Item and (3) assign a value to each Disputed Item that is within the range of values assigned to such Permitted Acquisition item in the Proposed Inventory Statement and the Dispute Notice, respectively. The determination of the Consultant shall be final and binding, absent manifest error. The dispute resolution procedures under this Section 6.1(c) shall constitute an expert determination under New York CPLR Article 76. The fees and expenses of the Consultant shall be paid by the Sellers, on the one hand, and by Buyer, on the other hand, based upon the percentage that the amount actually contested but not awarded to the Sellers or exclude annualized interest on any Debt repaid or assumed Buyer, respectively, bears to the aggregate amount actually contested by a third party the Sellers and Buyer. Except as provided in the immediately preceding sentence, all other costs and expenses incurred by the Parties in connection with such disposition, in each case, for resolving any dispute under this Section 6.1(c) before the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of the mandatory repayments that may be excluded Consultant shall be the amount of such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) above.borne by the

Calculation. In addition to any other amounts due hereunder, subject to the terms and conditions set forth herein, in consideration of the sale, assignment, conveyance, license and delivery of the Acquired Assets, Purchaser shall pay, or cause to be paid, to Reliant the following amounts (the “Sales-Based Contingent Purchase Price Payments”) in accordance with the terms of this Agreement based on Net Sales of the Product and/or any Additional Products as follows: (i) twenty percent (20%) of Net Sales of the Product and/or any Additional Products from the Initial Sale Date through the fifth (5th) anniversary of the Initial Sale Date; and (ii) five percent (5%) of Net Sales of the Product and/or any Additional Products from and after the fifth (5th) anniversary of the Initial Sale Date. For purposes of this Section 3.3, a sale of the Product and/or any Additional Products by Purchaser in the Territory for the purposes of calculating the ratios in clauses (1) and (2) above and for the purpose of Section 3.4 and in relation to the delivery of a Compliance Certificate, the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall determining Net Sales hereunder will be determined as of in accordance with GAAP. Notwithstanding the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarterforegoing, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA event that the Borrowers making, having made, using, offering for sale, selling or importing of Products or Additional Products in respect of the 12-month period following Territory (or making or having made Products or Additional Products outside the closing date of such disposition Territory for subsequent importation and sale in the Territory) by Purchaser or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition its Affiliates (or exclude the EBITDA of the operations disposed of (without deduction for their licensees or sublicensees) infringes any management feesPatent(s) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed controlled by a third party in connection with that also was or would also have been infringed by the Product Line Operations as they were conducted by Reliant on the Closing Date, and such dispositioninfringement is not subject to Reliant’s indemnification obligations hereunder, in each case, for the applicable portion Sales-Based Contingent Purchase Price Payment amounts set forth above will be reduced by [***]% of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of any losses, costs, expenses, judgments, royalties and other license fees or other payments, paid or incurred by Purchaser or its Affiliates (or their licensees or sublicensees) on account of such infringement (including for a license to such third party Patent(s)); provided, however, that the mandatory repayments that may Sales-Based Contingent Purchase Price Payments payable to Reliant with respect to Net Sales for any calendar quarter shall not be excluded shall be reduced in aggregate, through the reductions set forth in this Section 3.3, by more than [***]% of the amount of that would otherwise be payable (with any amount not deducted due to such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable deduction limitation carried forward to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) abovesubsequent calendar quarters).

Calculation. For (i) As soon as practicable (and in any event within ninety (90) days) after the purposes end of calculating the ratios in clauses (1) Transition Year, Purchaser shall prepare and (2) above and deliver to the Seller a consolidated statement of cash flows for the purpose Acquired Companies covering the Transition Year (the "Cash Flow Statement"), which shall set forth Purchaser's calculation of Section 3.4 and in relation to the Negative Cash Flows for the Transition Year. Following the delivery of the Cash Flow Statement to the Seller, Purchaser shall provide the Seller and its accountants and representatives, at the request of the Seller, with reasonable access during normal business hours to (A) the personnel used by Purchaser in the preparation of the Cash Flow Statement and (B) the books and records of the Acquired Companies as may reasonably be required for the review of the Cash Flow Statement (subject to the Confidentiality Limitations). (ii) If the Seller has any objections to the Cash Flow Statement (or any component thereof), it shall deliver to Purchaser a Compliance Certificatestatement describing its objections to Purchaser (the "CF Objection Notice") within sixty (60) days after Purchaser's delivery of the Cash Flow Statement; provided, however, if Purchaser does not provide the Seller and its accountants and representatives with reasonable access during normal business hours to (A) the personnel used by Purchaser in the preparation of the Cash Flow Statement and (B) subject to the Confidentiality Limitations, the following rules books and records of the Acquired Companies as may reasonably be required for the review of the Cash Flow Statement within five (5) days after a request therefor (or such shorter period as may remain in such sixty (60) day period), such sixty (60) day period shall apply, be extended by one Business Day for each additional Business Day required for Purchaser to comply with this proviso. The Seller shall include in the CF Objection Notice a reasonably detailed explanation of its objections to the Cash Flow Statement and the Borrowers shall provide details, satisfactory Seller's resultant calculation of the Negative Cash Flows. Subject to the Administrative Agentproviso set forth in the first sentence of this Section 2.4(b)(ii), (x) if the Seller fails to deliver a CF Objection Notice within sixty (60) days after Purchaser's delivery of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) Cash Flow Statement to the ratios shall be determined as of Seller, then the last day of each Fiscal Quarter on a rolling four quarter basis based Negative Cash Flows set forth on the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined Cash Flow Statement shall be deemed the Final Negative Cash Flows, and (y) if the Seller delivers to apply throughout Purchaser the subsequent Fiscal Quarter unless CF Objection Notice within such sixty (60) day period, and Purchaser disagrees with the Seller's objection, then Purchaser and the Seller will, during the fifteen (15) Business Day period following the date of the CF Objection Notice, or such longer period as the Seller and Purchaser may mutually agree (the "CF Resolution Period"), use reasonable efforts to resolve any such objection themselves. (iii) If at the conclusion of the CF Resolution Period, Purchaser and the Seller have not reached an agreement on the Seller's objections set forth in the CF Objection Notice, then either Purchaser or the Seller may submit any amounts and issues remaining in dispute to the Accounting Firm. In the event the parties submit any amounts or issues remaining in dispute to the Accounting Firm, each party will submit a disposition Cash Flow Statement (which in the case of each party may be a Cash Flow Statement that, with respect to any amounts or Permitted Acquisition occurs during issues originally in dispute (but not, for the avoidance of doubt, with respect to any other items), is different than the Cash Flow Statement initially submitted to the Seller, or the CF Objection Notice delivered to Purchaser, as applicable) together with such Fiscal Quartersupporting documentation as it deems appropriate. The Accounting Firm will resolve such dispute by choosing, in which case its entirety, the ratios Cash Flow Statement proposed by either the Seller or Purchaser, and will make no other resolution of such dispute (including by combining elements of the Closing Statements submitted by both parties). The costs and expenses of the Accounting Firm will be paid by the party whose calculation of the Adjustment Amount is not chosen by the Accounting Firm in its resolution of (iv) Upon determination of the Final Negative Cash Flows (as defined below), if the Negative Cash Flows: (A) is equal to or less than $25,000,000, there shall be adjusted as of no adjustment to the closing date of Purchase Price; or (B) exceeds $25,000,000, then the Purchase Price shall be reduced in accordance with Section 2.4(a) by an amount equal to such disposition or Permitted Acquisitionexcess; providedprovided¸ however, that if a Compliance Certificate in no event shall be delivered late, not be in form and substance satisfactory the reduction to the Credit Facility Lenders or prove Purchase Price as a result of this Section 2.4 exceed Twenty Million Dollars ($20,000,000) (it being understood that this limitation shall not apply to be incorrect, other potential adjustments to the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary Purchase Price set forth elsewhere in this Agreement). The term "Final Negative Cash Flows" shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then mean: (i) if the EBITDA that the Borrowers in respect of the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on Seller fails to deliver a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such disposition, in each case, for CF Objection Notice within the applicable portion of period set forth in Section 2.4(b)(ii), the 12-month period preceding such closing date Negative Cash Flows set forth on the Purchaser Cash Flow Statement; and (ii) if the Seller delivers a CF Objection Notice within the applicable period set forth in Section 2.4(b)(ii), the definitive Negative Cash Interest Coverage Ratio in respect Flows as of the 12-month period following Closing Date agreed to by the closing of such disposition Seller and Purchaser in accordance with Section 2.4(b)(ii) or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized the Negative Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion Flows as of the 12-month period preceding such closing date provided that, where Closing Date resulting from the operations disposed of were previously acquired using determination made by the proceeds of an Advance under Accounting Firm in accordance with Section 2.4(b)(iii) (which shall reflect those items theretofore agreed to by the Revolving Facility, then for Seller and Purchaser during the purposes of this subclause (ii) the amount of the mandatory repayments that may be excluded shall be the amount of such Debt so repaid CF Resolution Period or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent otherwise in accordance with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) aboveSection 2.4(b)(ii)).

Calculation. For 7 YEAR BASE RATE MARGIN", the purposes of calculating "7 YEAR LIBOR MARGIN", the ratios in clauses "10 YEAR BASE RATE MARGIN", the "10 YEAR LIBOR MARGIN" (1) collectively the "MARGINS"), and (2) above and for the purpose of Section 3.4 and in relation "COMMITMENT FEE FACTOR" shall be determined pursuant to the delivery table below (expressed in basis points) based on the Leverage Ratio, as of the end of each Fiscal Quarter, with such Margins effective as of the fifth Banking Day after receipt of a Compliance Certificate as required pursuant to Subsection 4.6.2 hereof (and it being expressly understood that the 7 Year LIBOR Margin and the 10 Year LIBOR Margin once set for a LIBO Rate Loans will not change during the LIBOR Rate Period therefore based upon a subsequent change in the Leverage Ratio; provided that the 7 Year LIBOR Margins and the 10 Year LIBOR Margins for LIBO Rate Loans existing on the Merger Consummation Date are subject to change during the LIBOR Rate Period therefore based upon a change in the Leverage Ratio calculated pursuant to clause (a) of this Subsection), except that (a) the Compliance Certificate required pursuant to Subsection 4.6.2 hereof with respect to the initial Merger Advance shall report the Leverage Ratio as of, and after giving effect to, the Merger; (b) the Margins and Commitment Fee Factor effective as of the Closing Date shall be based on the last Compliance Certificate provided pursuant to the 1999 Credit Agreement (or in accordance with clause (d) of this Subsection if no such Compliance Certificate was provided); (c) in the event that the final annual audited financial statements establish the Borrower was not entitled to a reduction in the Margin and the Commitment Fee Factor previously granted based upon a Compliance Certificate, Borrower shall, upon written demand by the following rules shall applyAdministrative Agent, pay any excess amount which should have been charged based on such annual audited financial statements; and (d) if the Compliance Certificate is not received by Administrative Agent by the Margin Report Deadline, the Margin and the Borrowers shall provide details, satisfactory Commitment Fee Factor for the period commencing on the first Banking Day after the Margin Report Deadline will each be based on a Leverage Ratio of 65.0% continuing until the fifth Banking Day after such time as Borrower delivers the Compliance Certificate to the Administrative Agent, of after which time the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) Margin and the ratios shall Commitment Fee Factor will be determined as of the last day of each Fiscal Quarter on a rolling four quarter basis based on the such Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA that the Borrowers in respect of the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of the mandatory repayments that may be excluded shall be the amount of such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) above.Certificate:

Calculation. In addition to any other amounts due hereunder, subject to the terms and conditions set forth herein, in consideration of the sale, assignment, conveyance, license and delivery of the Acquired Assets, Purchaser shall pay, or cause to be paid, to Reliant the following amounts (the “Sales-Based Contingent Purchase Price Payments”) in accordance with the terms of this Agreement based on Net Sales of the Product and/or any Additional Products as follows: (i) [***] percent ([***]%) of Net Sales of the Product and/or any Additional Products from the Initial Sale Date through the fifth (5th) anniversary of the Initial Sale Date; and (ii) [***] percent ([***]%) of Net Sales of the Product and/or any Additional Products from and after the fifth (5th) anniversary of the Initial Sale Date. For purposes of this Section 3.3, a sale of the Product and/or any Additional Products by Purchaser in the Territory for the purposes of calculating the ratios in clauses (1) and (2) above and for the purpose of Section 3.4 and in relation to the delivery of a Compliance Certificate, the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall determining Net Sales hereunder will be determined as of in accordance with GAAP. Notwithstanding the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarterforegoing, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA event that the Borrowers making, having made, using, offering for sale, selling or importing of Products or Additional Products in respect of the 12-month period following Territory (or making or having made Products or Additional Products outside the closing date of such disposition Territory for subsequent importation and sale in the Territory) by Purchaser or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition its Affiliates (or exclude the EBITDA of the operations disposed of (without deduction for their licensees or sublicensees) infringes any management feesPatent(s) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed controlled by a third party in connection with that also was or would also have been infringed by the Product Line Operations as they were conducted by Reliant on the Closing Date, and such dispositioninfringement is not subject to Reliant’s indemnification obligations hereunder, in each case, for the applicable portion Sales-Based Contingent Purchase Price Payment amounts set forth above will be reduced by [***]% of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of any losses, costs, expenses, judgments, royalties and other license fees or other payments, paid or incurred by Purchaser or its Affiliates [***]: Certain information on this page has been omitted and filed separately with the mandatory repayments Commission. Confidential treatment has been requested with respect to the omitted portions. (or their licensees or sublicensees) on account of such infringement (including for a license to such third party Patent(s)); provided, however, that may the Sales-Based Contingent Purchase Price Payments payable to Reliant with respect to Net Sales for any calendar quarter shall not be excluded shall be reduced in aggregate, through the reductions set forth in this Section 3.3, by more than [***]% of the amount of that would otherwise be payable (with any amount not deducted due to such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable deduction limitation carried forward to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) abovesubsequent calendar quarters).

Calculation. (a) For the purposes of this Clause 24 in respect of any Relevant Period, the exchange rates for determination of Consolidated Net Indebtedness for that Relevant Period shall be (i) with respect to Indebtedness for which the Restricted Group has entered into cross currency swaps, the rate at which such swap has been entered into and (ii) with respect to all other Indebtedness, the exchange rate used in the calculation of Consolidated EBITDA in accordance with paragraph (c) below. (b) For the purposes of Clause 24 (Financial Calculations), the exchange rates used in the calculation of Consolidated EBITDA in respect of any Relevant Period shall be the weighted average exchange rates for the Relevant Period determined in accordance with the Accounting Principles. (c) For the purposes of calculating Consolidated EBITDA under this Agreement for any period, if during such period the ratios in clauses Company or any Restricted Subsidiary (1by merger or otherwise) and (2) above and has made a Permitted Acquisition, the Company shall be permitted to calculate Consolidated EBITDA for the purpose Relevant Period after giving effect to a Pro Forma Adjustment as if such Permitted Acquisition had occurred on the first day of Section 3.4 and in such period. (d) In relation to the delivery of a Compliance Certificate, the following rules shall apply, definitions set out in Clause 24.1 (Financial definitions) and the Borrowers shall provide details, satisfactory to the Administrative Agent, all other related provisions of the EBITDA derived from Subsidiaries that are not Material Subsidiaries:Finance Documents (including this Clause 24.2): (ai) all calculations will be as determined in good faith by the ratios shall be determined as chief financial officer or finance director of the last day Restricted Group (or such other person as is performing the functions of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered chief financial officer or finance director), including in respect of savings and synergies; (ii) all calculations in respect of synergies and savings (in each case actual or anticipated) may be made as though the full run-rate effect of such Fiscal Quarter synergies and savings were realised on the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as first day of the closing relevant period, provided that such cost savings and synergies will cease to be included in any calculation of Consolidated EBITDA as Pro Forma Adjustments once they are (or at any time have proved to not be capable of being) realised or to the extent that they have not been realised within the 12 month period from the date of such disposition or completion of the relevant Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them;and (biii) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisitionnotwithstanding any provision of this Agreement, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA that the Borrowers in respect of the 12-month period following the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted any cost synergies and cost savings included on a pro forma basis must comply with the limits contained in the definition of “Pro Forma Adjustment”. (e) In the event that: (i) any Accounting Reference Date is adjusted by the Company for the sole purpose of avoiding an Accounting Reference Date falling on a day which is not a Business Day and/or to include ensure that an Accounting Reference Date falls on a particular day of the week; or (ii) there is any adjustment to a scheduled payment date to avoid payments becoming due on a day which is not a Business Day, |EU-DOCS\34803319.2|| if that adjustment results in any amount being paid in a Relevant Period in which it would otherwise not have been paid, for the purpose of calculating any financial definition or ratio under the Finance Documents the Company may treat such amount as if it was paid in the Relevant Period in which it would have been paid save for any such adjustment. (f) Unless a contrary indication appears, a reference to Consolidated EBITDA is to be construed as a reference to the Consolidated EBITDA of the operation comprising Company and its Restricted Subsidiaries on a consolidated basis. (g) Notwithstanding anything to the Permitted Acquisition contrary in this Agreement or exclude the EBITDA occurrence of the operations disposed First Amendment and Restatement Effective Date, in relation to any lease, concession, license of property or other arrangement (without deduction or guarantee thereof) which would be considered an operating lease (“Operational Leases”) under the Accounting Principles as applied in the Original Financial Statements (the “Original Accounting Principles”), to the extent such Operational Leases are subsequently treated as a finance lease or capital lease or otherwise required to be included as an on-balance sheet liability as a result of any change to the treatment of such leases or other arrangements under the Accounting Principles, such obligations shall be, unless the Company elects otherwise, treated in accordance with the Original Accounting Principles. (h) Notwithstanding any other term of any Finance Document, any Short-Term Shareholder Funding shall be excluded from cash or Cash Equivalents for the purposes of calculating Consolidated Net Indebtedness (for the avoidance of doubt, only so long as it constitutes Short-Term Shareholder Funding in accordance with the definition thereof). (i) For the avoidance of doubt, Consolidated EBITDA shall be calculated by reference to the Company and its Restricted Subsidiaries from time to time. Notwithstanding any management feesaccounting principles relating to entities under “common control” to the contrary, such calculation of Consolidated EBITDA shall not consolidate or otherwise include (other than to the extent of the Company and its Restricted Subsidiaries’ proportionate share (if any) of) the net profit or loss of any company, joint venture, business or other person that is not a Restricted Subsidiary of the Company (including, for the avoidance of doubt, as at the First Amendment and Restatement Effective Date, Soho Restaurants Limited and its Subsidiaries from time to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such disposition, time) (in each case, for the applicable portion a “Third Party”) regardless of the 12-month period preceding whether or not such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of the mandatory repayments that Third Party may be excluded shall be controlled by the amount of such Debt so repaid same party or assumed as shall exceed parties that portion of control the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA Company and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) aboveits Restricted Subsidiaries.

Calculation. In addition to any other amounts due hereunder, subject to the terms and conditions set forth herein, in consideration of the sale, assignment, conveyance, license and delivery of the Acquired Assets, Purchaser shall pay, or cause to be paid, to Reliant the following amounts (the “Sales-Based Contingent Purchase Price Payments”) in accordance with the terms of this Agreement based on Net Sales of the Product and/or any Additional Products as follows: (i) [***] percent ([***]%) of Net Sales of the Product and/or any Additional Products from the Initial Sale Date through the fifth (5th) anniversary of the Initial Sale Date; and (ii) [***] percent ([***]%) of Net Sales of the Product and/or any Additional Products from and after the fifth (5th) anniversary of the Initial Sale Date. For purposes of this Section 3.3, a sale of the Product and/or any Additional Products by Purchaser in the Territory for the purposes of calculating determining Net Sales hereunder will be [***]: Certain information on this page has been omitted and filed separately with the ratios in clauses (1) and (2) above and for the purpose of Section 3.4 and in relation Commission. Confidential treatment has been requested with respect to the delivery of a Compliance Certificate, omitted portions. determined in accordance with GAAP. Notwithstanding the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall be determined as of the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarterforegoing, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA event that the Borrowers making, having made, using, offering for sale, selling or importing of Products or Additional Products in respect of the 12-month period following Territory (or making or having made Products or Additional Products outside the closing date of such disposition Territory for subsequent importation and sale in the Territory) by Purchaser or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition its Affiliates (or exclude the EBITDA of the operations disposed of (without deduction for their licensees or sublicensees) infringes any management feesPatent(s) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed controlled by a third party in connection with that also was or would also have been infringed by the Product Line Operations as they were conducted by Reliant on the Closing Date, and such dispositioninfringement is not subject to Reliant’s indemnification obligations hereunder, in each case, for the applicable portion Sales-Based Contingent Purchase Price Payment amounts set forth above will be reduced by [***]% of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of any losses, costs, expenses, judgments, royalties and other license fees or other payments, paid or incurred by Purchaser or its Affiliates (or their licensees or sublicensees) on account of such infringement (including for a license to such third party Patent(s)); provided, however, that the mandatory repayments that may Sales-Based Contingent Purchase Price Payments payable to Reliant with respect to Net Sales for any calendar quarter shall not be excluded shall be reduced in aggregate, through the reductions set forth in this Section 3.3, by more than [***]% of the amount of that would otherwise be payable (with any amount not deducted due to such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable deduction limitation carried forward to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1) and (2) abovesubsequent calendar quarters).

Calculation. For Tenant shall pay its share of Common Area Expenses in the purposes manner provided in Section 4.4. Tenant's share of calculating the ratios in clauses (1) and (2) above and for the purpose of Section 3.4 and in relation to the delivery of a Compliance Certificate, the following rules Common Area Expenses shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiariesbe calculated as follows: (ai) Tenant's share of Common Area Expenses for the ratios previous calendar quarter or year shall be determined the proportion of all such expenses, exclusive of Interior Mall Expenses and Food Court Expenses, that the Floor Area of the Premises bears to the total Floor Area of all premises in the Shopping Center that are occupied and open for business as of the last day commencement of each Fiscal Quarter on a rolling four calendar quarter basis based and averaged for that calendar year, exclusive of the Floor Area occupied by the Major Tenants; provided, however, that during the Lease Term, in no event will Tenant's share of such Common Area Expenses be calculated on the Compliance Certificate delivered in respect basis of such Fiscal Quarter and less than eighty percent (80%) occupancy of the ratios so determined Floor Area of the Shopping Center, exclusive of the Floor Area occupied by the Major Tenants; (ii) If the storefront of the Premises is located on the Interior Mall, Tenant's share of Interior Mall Expenses for the previous calendar quarter or year shall be deemed the proportion of all Interior Mall Expenses that the Floor Area of the Premises bears to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case Floor Area of all premises having storefronts on the ratios shall be adjusted Interior Mall that are occupied and open for business as of the closing date commencement of such disposition or Permitted Acquisitioneach calendar quarter and averaged for that calendar year, exclusive of the Floor Area occupied by the Major Tenants; provided, however, that if a Compliance Certificate shall during the Lease Term, in no event will Tenant's share of such Interior Mall Expenses be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based calculated on the information available to them;basis of less than eighty percent (80%) occupancy of the Floor Area of premises having store fronts on the Interior Mall, exclusive of the Floor Area occupied by the Major Tenants; and (biii) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) If the EBITDA that Premises is located within the Borrowers in respect Food Court of the 12-month period following Shopping Center and the closing date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA use of the operation comprising Premises involves the Permitted Acquisition or exclude the EBITDA sale of the operations disposed food, Tenant's share of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such disposition, in each case, Food Court Expenses for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition previous calendar quarter or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) the amount of the mandatory repayments that may be excluded year shall be the amount proportion of such Debt so repaid or assumed as shall exceed all Food Court Expenses that portion the Floor Area of the aforesaid Advance under the Revolving Facility as is reasonably attributable Premises bears to the operations disposed of. At Floor Area of all food use tenants within the closing date Food Court that are occupied and open for business as of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA commencement of each calendar quarter and Cash Interest projections averaged for the next 12-month period to demonstrate compliance with clauses (1) and (2) abovethat calendar year.

Calculation. For Subject to the purposes provisions of calculating Section 4.6(b) below, all determinations required to be made under this Section 4.6, including whether and when a Gross-Up Payment is required and the ratios amount of such Gross-Up Payment and the assumptions to be utilized in clauses arriving at such determination, shall be made by the independent auditors most recently engaged by Group to conduct an independent audit of Group’s financial statements or such other certified public accounting firm reasonably acceptable to Pxxxxx as may be designated by Group (1the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to Pxxxxx and (2) above Group within 15 business days of the receipt of notice from Pxxxxx that there has been a Payment, or such earlier time as is requested by Group. All fees and expenses of the Accounting Firm shall be borne solely by Group. Any Gross-Up Payment, as determined pursuant to this Section 4.6, shall be paid by Group to or for the purpose benefit of Section 3.4 and in relation to the delivery of a Compliance Certificate, the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, Pxxxxx within 5 days of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall be determined as later of the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisition; provided, that if a Compliance Certificate shall be delivered late, not be in form and substance satisfactory to the Credit Facility Lenders or prove to be incorrect, the Credit Facility Lenders may adjust the calculation based on the information available to them; (b) for all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, other than a disposition to or acquisition from a Borrower or another Material Subsidiary, then (i) the EBITDA that the Borrowers in respect of the 12-month period following the closing due date of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) and to include annualized interest on any Debt assumed in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion payment of the 12-month period preceding such closing date any Excise Tax and (ii) the Cash Interest Coverage Ratio in respect receipt of the 12-month period Accounting Firm’s determination, but no later than December 31 of the year following the closing of such disposition year in which Pxxxxx pays the Excise Tax. Any determination by the Accounting Firm shall be binding upon Pxxxxx and Group unless substantial authority under the Code exists to the contrary or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by ruling is obtained from the Internal Revenue Service supporting a third party in connection with such disposition, in each case, for the applicable portion contrary view. As a result of the 12uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-month period preceding such closing date provided thatUp Payments which shall not have been made by Group should have been made (“UNDERPAYMENT”), where consistent with the operations disposed calculations required to be made hereunder. In the event that Group exhausts its remedies pursuant to Section 4.6(b) and Pxxxxx or Group thereafter is required to make a payment of were previously acquired using any Excise Tax, the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) Accounting Firm shall determine the amount of the mandatory repayments Underpayment that may be excluded has occurred and any such Underpayment shall be promptly paid by Group to Pxxxxx or for Pxxxxx’x benefit within the amount above timeframe. The previous sentence shall apply mutatis mutandis to any overpayment of such Debt so repaid or assumed as shall exceed that portion of the aforesaid Advance under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12a Gross-month period to demonstrate compliance with clauses (1) and (2) aboveUp Payment.

Calculation. For the purposes of calculating the ratios in clauses (1Lessee agrees that, with respect to any payment or indemnity pursuant to Section 7(b)(i) and (2) above and for the purpose of Section 3.4 and in relation hereof, such payment or indemnity shall include an amount payable to the delivery Indemnified Party sufficient to hold such Indemnified Party harmless on an after-tax basis from all Taxes required to be paid by such Indemnified Party with respect to such payment or indemnity under the laws of any federal, state or local government or governmental subdivision or taxing authority in or of the United States of America, including any possession or territory of the United States, or under the laws of any foreign government, taxing authority or governmental subdivision of a Compliance Certificate, the following rules shall apply, and the Borrowers shall provide details, satisfactory to the Administrative Agent, of the EBITDA derived from Subsidiaries that are not Material Subsidiaries: (a) the ratios shall be determined as of the last day of each Fiscal Quarter on a rolling four quarter basis based on the Compliance Certificate delivered in respect of such Fiscal Quarter and the ratios so determined shall be deemed to apply throughout the subsequent Fiscal Quarter unless a disposition or Permitted Acquisition occurs during such Fiscal Quarter, in which case the ratios shall be adjusted as of the closing date of such disposition or Permitted Acquisitionforeign country; provided, that if any Indemnified Party realizes a Compliance Certificate reduction in Taxes not subject to indemnification hereunder (a "tax benefit") by reason of such payment or indemnity (whether such tax benefit shall be delivered lateby means of investment tax credit, foreign tax credit, depreciation deduction or otherwise), such Indemnified Party shall, so long as no Lease Default (of the type described in Section 14.1 or 14.5 of the Lease) or Lease Event of Default shall have occurred or be continuing, pay Lessee (but not be in form and substance satisfactory before Lessee shall have made all payments or indemnities to such Indemnified Party then due under the Operative Agreements) an amount equal to the Credit Facility Lenders sum of such tax benefit plus any other tax benefit realized by such Indemnified Party as the result of any payment made pursuant to this proviso; provided, however, that such payment by an Indemnified Party shall not exceed the aggregate payments by Lessee to such Indemnified Party under Section 7(b)(i) hereof (but any such excess shall be carried forward PARTICIPATION AGREEMENT [N605SW] -20- 26 and shall reduce Lessee's obligation to make any subsequent payments to such Indemnified Party pursuant to Section 7(b) or prove 7(c) hereof). Each such Indemnified Party shall in good faith use reasonable efforts in filing its tax returns and in dealing with taxing authorities to seek and claim any such tax benefit of which it is actually aware or of which it has been given notice. Any Taxes that are imposed on any Indemnified Party as a result of the disallowance or reduction of such tax benefit referred to in the next preceding sentence in a taxable year subsequent to the year of allowance and utilization by such Indemnified Party (including the expiration of any tax credit carryovers or carrybacks of such Indemnified Party that would not otherwise have expired) shall be incorrectindemnifiable pursuant to the provisions of Section 7(b)(i) without regard to Section 7(b)(ii). In determining the amount of any net reduction in Taxes which is attributable to more than one transaction, the Credit Facility Lenders may adjust the calculation based on the information available an Indemnified Party shall be deemed to them; (b) for have utilized its deductions and credits attributable first, to all purposes if a Borrower or a Material Subsidiary shall make a disposition or Permitted Acquisition, transactions other than leveraged equipment leasing transactions and then to this transaction and to all such other leveraged equipment leasing transactions on a disposition pari passu basis. If as a result of any Advance (as hereinafter defined) to an Indemnified Party the aggregate taxes paid or acquisition from a Borrower or another Material Subsidiary, then (i) accrued by such Indemnified Party for any taxable year shall be more than the EBITDA that the Borrowers in respect of the 12-month period following the closing date amount of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include taxes which would have been payable by the EBITDA of the operation comprising the Permitted Acquisition or exclude the EBITDA of the operations disposed of (without deduction for any management fees) Indemnified Party had no such Advance been made, and to include annualized interest on any Debt assumed if such increase in connection with such Permitted Acquisition or exclude annualized interest on any Debt repaid or assumed by a third party taxes was not taken into account in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date and (ii) the Cash Interest Coverage Ratio in respect of the 12-month period following the closing of such disposition or Permitted Acquisition shall thereupon be adjusted on a pro forma basis to include or exclude annualized Cash Interest on Debt assumed in connection therewith or any Debt repaid or assumed by a third party in connection with such disposition, in each case, for the applicable portion of the 12-month period preceding such closing date provided that, where the operations disposed of were previously acquired using the proceeds of an Advance under the Revolving Facility, then for the purposes of this subclause (ii) determining the amount of the mandatory repayments that may Advance, then such increase in taxes will be excluded shall be treated as Taxes for which Lessee must indemnify the Indemnified Party pursuant to this Section 7(b). Upon the final determination of any contest pursuant to Section 7(b)(iv) hereof in respect of any Taxes for which Lessee has made an Advance, the amount of Lessee's obligation shall be determined under this Section 7(b)(iii) as if such Debt so repaid or assumed as shall exceed that portion Advance had not been made. Any obligation of the aforesaid Advance Lessee under the Revolving Facility as is reasonably attributable to the operations disposed of. At the closing date of any Permitted Acquisition, the Borrowers will provide the Administrative Agent with EBITDA and Cash Interest projections for the next 12-month period to demonstrate compliance with clauses (1this Section 7(b) and (2) abovethe Indemnified Party's obligation to repay the Advance will be satisfied first by set off against each other and any difference owing by either party will be paid within 10 days of such final determination.