Execution Version CREDIT AGREEMENT Article I Definitions ...................... ............................................................................... ................... 6 SECTION 1.01 Defined Terms .................................
Execution Version CREDIT AGREEMENT Article I Definitions ........................................................................................................................ 6 SECTION 1.01 Defined Terms ............................................................................................... 6 DATED AS OF OCTOBER 2, 2019 SECTION 1.02 Terms Generally........................................................................................... 52 SECTION 1.03 Classification of Loans and Borrowings ...................................................... 53 AMONG SECTION 1.04 Cashless Roll ................................................................................................ 54 BIDFAIR MERGERIGHT INC., SECTION 1.05 Limited Condition Transaction .................................................................... 54 AS BORROWER SECTION 1.06 Letters of Credit ........................................................................................... 55 THE LENDERS PARTY HERETO SECTION 1.07 LIBO Rate Discontinuation ......................................................................... 55 SECTION 1.08 [Reserved.] ................................................................................................... 56 AND SECTION 1.09 Agreed Security Principles .......................................................................... 56 BNP PARIBAS, SECTION 1.10 Subsidiary Revolver Borrower. ................................................................... 56 AS ADMINISTRATIVE AGENT Article II The Credits .................................................................................................................... 58 SECTION 2.01 Commitments ............................................................................................... 58 DEUTSCHE BANK TRUST COMPANY AMERICAS, SECTION 2.02 Loans ............................................................................................................ 59 AS COLLATERAL AGENT SECTION 2.03 Borrowing Procedure ................................................................................... 60 SECTION 2.04 Evidence of Debt; Repayment of Loans ...................................................... 60 SECTION 2.05 Fees .............................................................................................................. 61 BNP PARIBAS SECURITIES CORP., SECTION 2.06 Interest on Loans .......................................................................................... 63 SECTION 2.07 Default Interest............................................................................................. 63 SECTION 2.08 Alternate Rate of Interest ............................................................................. 63 SECTION 2.09 Termination or Reduction of Commitments ................................................ 64 SECTION 2.10 Conversion and Continuation of Borrowings .............................................. 65 SECTION 2.11 Repayment of Borrowings ........................................................................... 67 SECTION 2.12 Voluntary Prepayments ................................................................................ 68 SECTION 2.13 Mandatory Prepayments .............................................................................. 76 AS JOINT BOOKRUNNERS AND LEAD SECTION 2.14 Reserve Requirements; Change in Circumstances ...................................... 80 ARRANGERS SECTION 2.15 Change in Legality ....................................................................................... 81 SECTION 2.16 Breakage ...................................................................................................... 82 SECTION 2.17 Pro Rata Treatment ...................................................................................... 83 SECTION 2.18 Sharing of Setoffs ........................................................................................ 83 SECTION 2.19 Payments ...................................................................................................... 84 SECTION 2.20 Taxes ............................................................................................................ 84 SECTION 2.21 Assignment of Commitments Under Certain Circumstances; Duty to Mitigate ........................................................................................................ 88 i 76797407_14 76797407_14 EU-DOCS\25892879.1776797407_20 EU-DOCS\25892879.17
CREDIT AGREEMENT, dated as of October 2, 2019 (as amended, amended and restated, Acquisition Agreement Agreement 16, 2019, among BidFair USA Inc., a Delaware corporation (formerly known as BidFair USA Merger Sub LLC, a Delaware limited liability company), Merger Sub and the Target. consummation of the Borrower Merger (as defined below) and as further defined in Section 1.01, Borrower Additional Lender this introductory statement having the meaning given it in Article I) party hereto and BNP Paribas to provide Incremental Loan Commitments pursuant to Section 2.22 or Refinancing Commitments BNP pursuant to Section 2.24. Administrative Agent collateral agent (in such capacity, including any su Collateral Agent Adjusted LIBO Rate Lenders. Interest Period, (a) in the case of the Initial Term Loans, an interest rate per annum equal to the greater of (i) 1.00% per annum and (ii) the LIBO Rate in effect for such Interest Period and (b) in WHEREAS, the Borrower has requested the Lenders to extend credit in the form of the case of the Initial Revolving Credit Loans, an interest rate per annum equal to the LIBO Rate (i) Initial Term Loans in an aggregate principal amount not in excess of $500,000,000 which shall in effect for such Interest Period. be available in up to two drawings as set forth herein, and (ii) Revolving Credit Commitments in an initial aggregate principal amount not in excess of $400,000,000. The Revolving Credit Administrative Agent Commitments permit the issuance of one or more Letters of Credit from time to time and the statement to this Agreement. making of one or more Revolving Credit Loans and/or Swing Line Loans from time to time; and Administrative Borrower WHEREAS, the Lenders are willing to extend such credit to the Borrower on the terms (b) upon the effectiveness of the Borrower Merger, Target. and subject to the conditions set forth herein. Administrative Questionnaire NOW THEREFORE, in consideration of the mutual agreements, provisions and covenants of Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent. contained herein, the parties hereto agree as follows: Affiliated Lender ARTICLE I Affiliates and funds or partnerships managed or advised by them, but in any event excluding (a) any portfolio company of any of the forgoing and (b) any Group Member. DEFINITIONS Affiliated Lender Cap Section SECTION 1.01 Defined Terms. Save where specified to the contrary or where 9.04(l)(iii). defined in Annex II of this Agreement, defined terms used in this Agreement shall have the meanings specified below: Affiliated Lender/Borrower Assignment and Acceptance acceptance entered into by a Lender and the Borrower or an Affiliated Lender, as applicable, and ABR to whether such accepted by the Administrative Agent, in the form of Exhibit E or such other form as shall be Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by approved by the Administrative Agent. reference to the Alternate Base Rate. Agent Fee Letter Acceptable Discount Section the Borrower and the Administrative Agent. 2.12(c)(iv)(B). Agents Article VIII. Acceptable Prepayment Amount Section 2.12(c)(iv)(C). Agreed Security Principles Schedule 1.09. Acceptance Date Section 2.12(c)(iv)(B). Aggregate Revolving Credit Exposure Credit Exposures of the Revolving Credit Lenders at such time. Acquisition Permitted Holders Purchaser Agreement Currency Section 9.21. 6 7 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
All-In Yield edness, the yield thereof, whether in the form of Authority, (b) any entity established in an EEA Member Country which is a parent of an institution interest rate, margin, original issue discount, upfront fees, an Adjusted LIBO Rate floor or an described in clause (a) of this definition, or (c) any financial institution established in an EEA Alternate Base Rate floor (solely to the extent greater than any then applicable LIBO Rate or the Member Country which is a subsidiary of an institution described in clause (a) or (b) of this Alternate Base Rate, as applicable), or other fees paid ratably to all lenders of such indebtedness, definition and is subject to consolidated supervision with its parent. in each case, incurred or payable by the Borrower generally to all the lenders of such indebtedness; provided, that (a) OID and upfront fees shall be equated to interest rate assuming a 4-year life to Applicable Margin (a) in respect of the Initial Term Loans, (i) maturity (or, if less, the stated life to maturity at the time of its incurrence of the applicable with respect to any ABR Loan, 4.50% per annum and (ii) with respect to any Eurodollar Loan, Indebtedness), (b) - ent 5.50% per annum; and (b) in respect of Revolving Credit Loans, (i) with respect to any ABR Loan, fees, underwriting fees, success fees, ticking fees, consent or amendment fees and any similar fees 2.75% per annum and (ii) with respect to any Eurodollar Loan, 3.75% per annum. For the (regardless of whether shared with, or paid to, in whole or in part, any or all lenders) and any other avoidance of doubt, (A) the Applicable Margin in respect of any Loans under any Extended Class fees not paid ratably to all lenders of such indebtedness and (c) if any such indebtedness includes shall be the applicable percentages per annum set forth in the relevant Extension Amendment, or an Adjusted LIBO Rate or Alternate Base Rate floor that is greater than the Adjusted LIBO Rate other documentation establishing such Extended Class, (B) the Applicable Margin in respect of or Alternate Base Rate floor then applicable to any Term Loans, such differential between interest any Class of Incremental Loans shall be the applicable percentages per annum set forth in the rate floors shall be included in the calculation of the All-In Yield, but only to the extent an increase Incremental Loan Assumption Agreement or other documentation establishing such Class of in the Adjusted LIBO Rate or Alternate Base Rate floor applicable to the Term Loans would cause Incremental Loans, and (C) the Applicable Margin in respect of any Class of Refinancing Loans an increase in the interest rate then in effect thereunder. shall be the applicable percentages per annum set forth in the relevant Refinancing Amendment or other documentation establishing such Class of Refinancing Loans. Alternate Base Rate (a) the rate recently announced by the Administrative Agent at its principal office as its Prime Applicable Revolving Commitment Fee Percentage Rate, which is not necessarily the lowest rate made available by the Administrative Agent, (b) the Initial Funding Date until the date a compliance certificate is delivered pursuant to Section 4.10 in Federal Funds Effective Rate in effect on such day plus 1/2 of 1.00% and (c) the Adjusted LIBO Annex I calculating the Consolidated Net Senior Secured Leverage Ratio for the Test Period Rate for a one-month Interest Period on such day (or if such day is not a Business Day, the ending as of the last day of the first full fiscal quarter following the Closing Date, a percentage, immediately preceding Business Day) plus 1.00%; provided that, for the avoidance of doubt, the per annum equal to 0.50%, and thereafter a rate determined by reference to the Consolidated Net Adjusted LIBO Rate for any day shall be based on the rate determined on such day at Senior Secured Leverage Ratio in effect from time to time as set forth below: approximately 11:00 a.m. (London time) by reference to the ICE Benchmark Administration LIBO Rate (or the successor thereto if the ICE Benchmark Administration is no longer making a LIBO Level Consolidated Net Senior Secured Applicable Revolving Commitment Rate available) for deposits in dollars (as set forth by any commercially available source providing Leverage Ratio Fee Percentage quotations of LIBO Rate selected by the Administrative Agent). The Prime Rate announced by the Administrative Agent is evidenced by the recording thereof after its announcement in such I 0.500% internal publication as the Administrative Agent may designate. Any change in the interest rate II < 3.50:1.00 0.375% resulting from a change in the Prime Rate announced by the Administrative Agent shall become effective without prior notice to the Borrower as of 12:01 a.m. (New York City time) on the When calculating the Consolidated Net Senior Secured Ratio for the purposes of this Business Day on which each change in the Prime Rate is announced by the Administrative Agent. The Administrative Agent may make commercial or other loans to others at rates of interest at, that occurred subsequent to the end of the applicable Test Period shall not be given pro forma above or below the Prime Rate. If the Administrative Agent shall have determined (which effect. No change in the Applicable Revolving Commitment Fee Percentage shall be effective determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal until three Business Days after the date on which Administrative Agent shall have received the Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent applicable financial statements and the Compliance Certificate pursuant to Section 4.10 in Annex to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate I calculating the Consolidated Net Senior Secured Leverage Ratio. Furthermore no change in the Base Rate shall be determined without regard to clause (b) of the preceding sentence until the Applicable Revolving Commitment Fee Percentage to Level II shall be effective if at the time of circumstances giving rise to such inability no longer exist. the proposed change an Event of Default has occurred and is continuing. At any time the Borrower has not submitted to Administrative Agent the applicable financial statements and the Compliance Applicable Discount Section Certificate as and when required under Section 4.10 in Annex I, the Applicable Revolving 2.12(c)(iii)(B). Commitment Fee Percentage shall be set at the percentage in the appropriate column for Level I Applicable Financial Institution mean (a) any credit institution or investment firm in the table above as of the third Business Day after the date such information was required to be established in any EEA Member Country which is subject to the supervision of any Resolution delivered until the date on which such information is delivered (on which date the Applicable Revolving Commitment Fee Percentage shall be set at the percentage based upon the Consolidated 8 9 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
BHC Act Affiliate Section 9.23(b). Breakage Event Section 2.16. BNP such term in the introductory statement to this Business Day (a) any day other than a Saturday, Sunday or other day on Agreement. which commercial banks in New York City are authorized or required by law to close and, (b) if the applicable Business Day relates to notices, determinations, fundings or payments in connection BNP Securities with the LIBO Rate or any Eurodollar Loans, any day which is a Business Day described in clause (a) and which is also a day on which dealings in Dollar deposits are also carried on the Board London interbank market. States of America. Captive Insurance Affiliate Borrower cases, the Administrative Borrower; provided that, after the purpose of, and to be engaged solely in the business of, insuring the businesses or facilities owned appointment of the Subsidiary Revolver Borrower as the Subsidiary Revolver Borrower in or operated by Borrower or any of its Subsidiaries or Affiliates or joint ventures or to insure related accordance with Section 1.10 hereof, and so long as such Subsidiary Revolver Borrower has not or unrelated businesses. resigned in accordance with Section 1.10(e) hereof, Borrower shall refer to the Administrative Borrower and/or the Subsidiary Revolver Borrower, as the context may require, provided that, Cash Collateral Section 2.26(g). unless otherwise specified, solely with respect to the Term Facility and for all purposes under Annex I and Annex II, Borrower shall refer to the Administrative Borrower only. Cash Collateralize Section 2.26(g). Borrower Group CERCLA Liability Act, 42 U.S.C. Β§ 9601 et seq. Borrower Materials Section 9.01. CERCLIS Borrower Merger shall mean the merger of Merger Sub with and into Target, with Target Liability Information System maintained by the United States Environmental Protection Agency. being the surviving corporation of the Borrower Merger. Change in Law Borrower Offer of Specified Discount Prepayment the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change to make a voluntary prepayment of Loans at a Specified Discount to par pursuant to Section in any law, rule, regulation or treaty or in the administration, interpretation or application thereof 2.12(c)(ii). by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority. For purposes of this Borrower Solicitation of Discount Range Prepayment Offers definition, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules, Discount Range Prepayment Offers regulations, orders, requests, guidelines or directives thereunder or in connection therewith and all corresponding acceptance by a Lender of, a voluntary prepayment of Loans at a specified range of requests, rules, guidelines or directives concerning capital discounts to par pursuant to Section 2.12(c)(iii). promulgated either by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by the United States or foreign regulatory Borrower Solicitation of Discounted Prepayment Offers authorities pursuant thereto, are deemed to have been adopted and gone into effect after the date the Borrow Solicited Discounted Prepayment Offers of this Agreement. subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Loans at a discount to par pursuant to Section 2.12(c)(iv). Change of Control Tender Target Group by consummating, in connection with the Acquisition, an offer to purchase all of the Borrowing Existing Target Notes from the holders thereof in accordance with the applicable provisions of the Term Borrowing, as the context may require. indenture governing the Existing Target Notes. Borrowing Request rms Change of Control Tender Settlement Date of Article II in relation to (a) a Revolving Credit Borrowing, substantially in the form set out in Control Tender is settled. Exhibit C-1, (b) a Swing Line Borrowing, substantially in the form set out in Exhibit C-2 or (c) a Term Borrowing, substantially in the form set out in Exhibit C-3, or in each case, such other form Charges Section 9.09. as shall be approved by the Administrative Agent. 12 13 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Class (a) with respect to Commitments or Loans, those of such Commitments Commitment Termination Date (a) the date of the or Loans that have the same terms and conditions (without regard to differences in the Type of consummation of the Acquisition (with or without the use of any Loans or Senior Secured Notes); Loan, Interest Period, upfront fees, OID or similar fees paid or payable in connection with such provided that if the Acquisition is consummated with the utilization of Loans or Senior Secured Commitments or Loans, or differences in Notes, this clause (a) will not terminate the undrawn Commitments under the Initial Term Loan Commitments or Loans may be designated in writing by the Borrower and Lenders holding such Commitments available to be drawn on the Delayed Draw Funding Date or the Revolving Credit Commitments or Loans as a separate Class from other Commitments or Loans that have the same Facilities, (b) the valid termination of the Acquisition Agreement in accordance with its terms, terms and conditions and (b) with respect to Lenders, those of such Lenders that have (c) with respect to the entire aggregate amount of any undrawn Commitments under the Initial Commitments or Loans of a particular Class. Once funded, the Delayed Draw Term Loans and Term Loan Commitments after the Closing Date, the date that is the earlier of (i) 45 days after the the Initial Draw Term Loans shall constitute a single Class of Term Loans having identical terms Closing Date and (ii) the Change of Control Tender Settlement Date (such earlier date, the as set forth herein. Delayed Draw Termination Date (d) the Longstop Date (if the Acquisition shall not have been consummated by such date); provided that if earlier (and solely with respect to the Initial Closing Date Term Loan Commitments in excess of the amount available to be drawn on the Delayed Draw accordance with the terms of the Acquisition Agreement. Funding Date), the Initial Funding Date shall be deemed to be the Commitment Termination Date. Closing Date Intercreditor Agreement mean the intercreditor agreement Committed Lender substantially in the form of Exhibit D hereto, dated as of the Closing Date, among, inter alios, Commitment Letter. Deutsche Bank Trust Company Americas, as Collateral Agent and Authorized Representative for the Initial Additional Secured Parties referred to therein, and the Collateral Agent, as Collateral Communications Section 9.01. Agent and the Administrative Agent as Authorized Representative, in each case for the Credit Agreement Secured Parties referred to therein (in each case as such terms are defined therein). Compliance Date full fiscal quarter of the Borrower ending after the Closing Date) if on such day the Compliance Closing Date Intercreditor Agreement Supplement Date Condition is met. substantially in the form of Annex I to the Closing Date Intercreditor Agreement, or in another form reasonably satisfactory to the Administrative Agent and the Borrower, pursuant to which a Compliance Date Condition Grantor becomes a party to, and bound by, the terms of the Closing Date Intercreditor Agreement. Exposure is an aggregate principal amount equal to or exceeding 35% of the amount of the aggregate outstanding Revolving Credit Commitments excluding, for purposes of calculating such Closing Date Revolving Available Amount shall mean $160,000,000. Aggregate Revolving Credit Exposure, any L/C Obligations (a) in respect of Cash Collateralized Letters of Credit and (b) in respect of undrawn Letters of Credit, in an aggregate amount not Code exceeding the Letter of Credit Sublimit. and rulings issued thereunder (unless otherwise provided herein). Consolidated Collateral of a Person, the application or preparation of such term, test, statement or report (as applicable) based upon the consolidation, in accordance with GAAP, of the financial condition or operating any similar or equivalent term used or referred to in any applicable Security Document) and all results of such Person and its Subsidiaries. other property that is or is intended under the terms of the Security Documents to be subject to Liens in favor of the Administrative Agent or the Collateral Agent. Contract Consideration (b)(xii) Collateral Agent assigned to such term in the introductory statement to this Agreement. Control the direction of the management or policies of a Person, whether through the ability to exercise Commitment voting xxxx the context may require. meanings correlative thereto. Commitment Letter dated as of September 11, Covered Entity Section 9.23(b). 2019, among Merger Sub, Bidfair USA LLC, BNP, BNP Securities and GS Bank. Covered Jurisdiction Agreement. 14 15 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Discounted Prepayment Determination Date information and lender meetings, (2) be entitled to any expense reimbursement or indemnification term in Section 2.12(c)(iv)(C). under the Loan Documents, and nothing in the Loan Documents shall restrict the rights and remedies of the Loan Parties against such Disqualified Person, (3) receive any other information Discounted Prepayment Effective Date or reporting provided by the Borrower, the Administrative Agent or any other Lender, (4) attend Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer or or participate in meetings attended by the Lenders and the Administrative Agent or (5) be entitled Borrower Solicitation of Discounted Prepayment Offer, five (5) Business Days following the to access any electronic site established for Lenders or confidential communications from counsel Specified Discount Prepayment Response Date, the Discount Range Prepayment Response Date to or financial advisors of the Administrative Agent or the Lenders. or the Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section 2.12(c)(ii)(A), Section 2.12(c)(iii)(A) or Section 2.12(c)(iv)(A), respectively, unless a shorter Dollars dollars $ period is agreed to between the Borrower and the Auction Manager. EEA Member Country and, Discounted Term Loan Prepayment United Kingdom, Liechtenstein and Norway. Section 2.12(c)(i). Effective Date Section Disqualified Person (a) any Person, other than a Loan Party, who has been 4.01 have been satisfied, which date is October 2, 2019. identified to the Administrative Agent in writing on or prior to the Bank Meeting Date and posted - Eligible Assignee confidentiality provisions thereof in accordance with Section 9.01 or otherwise made available to Lender that is (a) a Lender, an Affiliate of any Lender or a Related Fund (any two or more Related DQ List Funds being treated as a single Eligible Assignee for all purposes hereof) or (b) a commercial bank, on the basis of the similarity of its name to any Person set forth on the DQ List (other than its financial investors and affiliated bona fide diversified debt funds that are not operating companies defined in Regulation D) and which extends credit or buys loans in the ordinary course; provided or affiliates of operating companies) and/or (b) any Person, other than a Loan Party, who directly provides products or services that are the same or substantially similar to the products or services Person that is a Loan Party (other than the Borrower to the extent provided in Section 9.04(k)), provided by, and that constitute a material part of the business of, the Loan Parties taken as a Section whole, and any Affiliate of any such Person (other than its financial investors and affiliated bona 9.04(l)), any Subsidiaries or any Disqualified Person. fide diversified debt funds that are not operating companies or affiliates of operating companies), who has been identified to the Administrative Agent in writing from time to time and posted to Environmental Laws - national, regional, local and other laws, rules, regulations, decisions and orders, in each case confidentiality provisions thereof in accordance with Section 9.01 or otherwise made available to applicable to and legally binding on such Person, relating to the protection of human health and all Lenders (and potential Lenders, subject to such confidentiality provisions) and, in the case of safety as related to hazardous materials exposure, the environment or hazardous or toxic Persons and Affiliates of any Person (other than its financial investors and affiliated bona fide substances or wastes, pollutants or contaminants. diversified debt funds that are not operating companies or affiliates of operating companies) identified to the Administrative Agent on or after the Bank Meeting Date, to the extent reasonably Environmental Liability acceptable to the Administrative Agent. Notwithstanding anything to the contrary herein, in no suit, judgment, order, fine, penalty, fee, expense, or cost, contingent or otherwise (including any event shall the designation of a Person as a Disqualified Person apply (i) to disqualify any Person liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the until three (3) Business Days after such Person shall have been identified in writing to the Borrower, or any other Loan Party resulting from or based upon (a) violation of any Environmental Administrative Agent via electronic mail submitted to Law, (b) the generation, use, handling, transportation, labeling, storage, treatment, disposal or XX_XX_Xxxxxx_Xxxxxxxx@xx.xxxxxxxxxx.xxx (or such other address as the Administrative recycling of, or presence of any Hazardous Materials, (c) exposure to any Hazardous Materials, Agent may designate to the Borrower from time to xxx Designation Effective Date (d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any (ii) retroactively to disqualify any Person that, before the Designation Effective Date, has (A) contract, agreement or other consensual arrangement pursuant to which liability is assumed or acquired an assignment or participation interest under this Agreement or (B) entered into a trade imposed with respect to any of the foregoing. to acquire an assignment or participation interest under this Agreement. Environmental Permits If a Disqualified Person becomes a Lender hereunder in violation of the provisions of this any Environmental Law for the operation of the business of any Loan Party or its Restricted Disqualified Person shall not (1) be Subsidiaries conducted on or from the properties owned or used by any Loan Party or its Restricted entitled to any of the rights or privileges enjoyed by the other Lenders with respect to voting, Subsidiaries. 18 19 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
ERISA the Employee Retirement Income Security Act of 1974, and the rules the end of such period) and (iii) expenses reducing (or excluded from) the calculation of and regulations promulgated thereunder. Consolidated Net Income for such period with respect to amounts deducted in any prior calculation of Excess Cash Flow pursuant to clause (b)(iii), (vi), (vii) and (ix) below, and minus: ERISA Affiliate any trade or business (whether or not incorporated) that, together with a Borrower, is treated as a single employer under Section 414(b) or (c) of the Code (b) the sum, without duplication including with respect to amounts already reducing or Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 Consolidated Net Income and not added back to Consolidated EBITDA, of: of the Code, is treated as a single employer under Section 414 of the Code. (i) the amount of any Taxes payable or tax reserves set aside or payable ERISA Event (a) (without duplication) in cash by the Borrower (or any direct or indirect parent thereof) with ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which respect to the Borrower and the Restricted Subsidiaries with respect to such period; the 30-day notice period is waived); (b) defined in Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA), whether or not (ii) Consolidated Interest Expense for such period paid in cash; waived or the failure to make by its due date a required installment under Section 430(j) of the Code; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an (iii) to the extent not deducted in a prior period pursuant to clause (b)(vii) below, application for a waiver of the minimum funding standard with respect to any Plan; (d) the capital expenditures made in cash during such period to the extent financed with Internally incurrence by any Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with Generated Cash; respect to the termination of any Plan; (e) the receipt by any Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice of an intention to terminate any Plan or Plans (iv) (A) all scheduled principal payments and repayments of Indebtedness and or to appoint a trustee to administer any Plan; (f) the incurrence by any Borrower or any ERISA the principal component of payments in respect of Capitalized Lease Obligations (other Affiliate of any liability with respect to the withdrawal or partial withdrawal of any Borrower or than Revolving Credit Loans if such scheduled payment and repayment does not occur at any ERISA Affiliate from any Plan or Multiemployer Plan; (g) the receipt by any Borrower or any the final maturity thereof concurrently with the permanent termination of all commitments ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Borrower or in respect thereof), (B) all voluntary prepayments of Indebtedness and the principal any ERISA Affiliate of any notice, of the imposition upon any Borrower or any ERISA Affiliate component of payments in respect of Capitalized Lease Obligations (other than Pari Passu of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, (i) in Indebtedness) made in cash by the Borrower and the Restricted Subsidiaries during such of the Code or Section 305 of ERISA, period, but only to the extent that the Indebtedness so repaid by its terms cannot be (ii) insolvent within the meaning of Title IV of ERISA; (h) the imposition of a lien pursuant to reborrowed or redrawn and such repayments do not occur in connection with a refinancing Section 430(k) of the Code or Section 303(k) or Section 4068 of the ERISA on any ERISA of all or any portion of such Indebtedness, (C) the amount of a mandatory prepayment of Affiliate with respect to any Multiemployer Plan; (i) a violation of Section 436 of the Code, or (j) Term Loans pursuant to Section 2.13(a) and any mandatory prepayment, repayment or redemption of Pari Passu Indebtedness pursuant to requirements under the agreements the Code or Section 303 of ERISA). governing such Pari Passu Indebtedness similar to the requirements set forth in Section 2.13(a), to the extent required due to an Asset Disposition (or any disposition specifically EU Bail-In Legislation Schedule -In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. to Consolidated EBITDA and not in excess of the amount of such increase, and (D) the aggregate amount of any premium, make-whole, penalty payments or the principal Eurodollar ed in dollars, component of payments in respect of Capitalized Lease Obligations actually paid in cash shall refer to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at by the Borrower and its Restricted Subsidiaries during such period that are required to be a rate determined by reference to the Adjusted LIBO Rate. made in connection with any such prepayment of Indebtedness; Events of Default Section 7.01 of this (v) additions to noncash working capital for such period (i.e., the increase, if Agreement. any, in Current Assets minus Current Liabilities from the beginning to the end of such period), Excess Cash Flow the first full fiscal year elapsed after the Closing Date): (vi) to the extent not deducted in a prior period pursuant to clause (b)(vii) below, the amount of any cash expense, charge or other cost during such period related to any (a) the sum, without duplication, of (i) Consolidated EBITDA for such period, Equity Offering, Investment, acquisition, disposition, recapitalization, Incurrence of any (ii) reductions to noncash working capital of the Borrower and its Restricted Subsidiaries for such Indebtedness, amendment or modification of any debt instrument (including any period (i.e., the decrease, if any, in Current Assets minus Current Liabilities from the beginning to amendment or other modification of this Agreement and/or the other Loan Documents) or 20 21 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
similar transaction permitted by this Agreement (whether or not successful) (including any in clause (xi) above), acquisitions of intellectual property, any scheduled payment, such fees, expenses or charges related to the Transactions) and any cash charges or non- repurchase or redemption of Indebtedness (described in clause (iv) above) that was recurring merger costs incurred during such period as a result of any such transaction, in permitted by the terms of this Agreement to be incurred and paid, repurchased or redeemed each case as determined in good faith by the Borrower to the extent financed with Internally Permitted Expenditures Generated Cash; consummated or made, as applicable, during the period of four consecutive fiscal quarters of the Borrower following the end of such period, and expected in good faith to be financed (vii) to the extent not deducted in a prior period pursuant to this clause (b)(vii), with Internally Generated Cash; provided that to the extent that the aggregate amount of the aggregate amount of expenditures actually made by the Borrower and its Restricted Permitted Expenditures financed with Internally Generated Cash and paid in cash during Subsidiaries during such period, or at the option of the Borrower, after the end of such such following period of four consecutive fiscal quarters is less than the aggregate amount period and prior to the date upon which a mandatory prepayment for such period would be of Planned Expenditures expected to be financed with Internally Generated Cash, the required under Section 2.13(b), in each case, from Internally Generated Cash (including amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end expenditures for the payment of financing fees) to the extent that such expenditures are not of such following period of four consecutive fiscal quarters; and expensed during such period, are not deducted (or were excluded) in calculating Consolidated Net Income or were added back in calculating Consolidated EBITDA; (xiii) cash expenditures in respect of Hedging Obligations during such period to the extent not deducted (or were excluded) in arriving at Consolidated Net Income or added (viii) an amount equal to (A) the amount of all non-cash credits included in back to Consolidated EBITDA, to the extent financed with Internally Generated Cash. arriving at Consolidated Net Income (but excluding any non-cash credit to the extent representing the reversal of an accrual or reserve for potential cash items in any future Notwithstanding anything else provided in this Agreement, (x) the amounts deducted under period) and (B) cash charges, losses or expenses excluded in arriving at Consolidated Net clause (b) above shall in no event be duplicative of amounts deducted under clause (y) of the first Income or added back in calculating Consolidated EBITDA; proviso of Section 2.13(b) and (y) to the extent an amount is eligible to be deducted under either clause (b) above or clause (y) of the first proviso of Section 2.13(b), such amounts shall be deemed (ix) without duplication of any amount included in clause (iv) above, cash to have been deducted under clause (y) of the first proviso of Section 2.13(b) (and not, for the payments by the Borrower and its Restricted Subsidiaries during such period in respect of avoidance of doubt, clause (b) above). long-term liabilities (including pension and other post-retirement obligations) of the Borrower and its Restricted Subsidiaries (other than Indebtedness) to the extent such Excluded Accounts (a) payroll accounts, (b) zero balance accounts, payments are not expensed during such period or are not deducted (or were excluded) in (c) any withholding tax, benefits, escrow, trust, customs or any other fiduciary account and (d) any calculating Consolidated Net Income and financed with Internally Generated Cash; account having a balance that does not exceed $2,500,000 for more than three (3) consecutive Business Days at any time. (x) to the extent added back to Consolidated EBITDA, the amount of management, monitoring, consultancy and advisory fees and related expenses paid in such Excluded Assets each of the following: (a) -to- period (or accruals relating to such fees and related expenses) to any Permitted Holder registration of a trademark filed pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. Β§ 1051, (whether directly or indirectly, through any Parent), financed with Internally Generated Act or an Cash; solely to the extent, if any, that and solely during the period, if any, in which, the grant of a security (xi) the amount of any Permitted Investment (other than a Permitted Investment interest therein would impair the validity or enforceability of any registration that issues from such made pursuant to clause (c) of the definition thereof) and any Restricted Payment pursuant intent-to-use application under applicable federal law, (b) margin stock, (c) assets subject to to Section 4.05 of Article IV in Annex I hereof, in each case, that are made during such certificates of title (including motor vehicles (other than motor vehicles subject to certificates of period by the Borrower or any Restricted Subsidiary thereof with Internally Generated title, provided that perfection of security interests in such motor vehicles shall be limited to the Cash; filing of UCC financing statements), aircraft and aircraft engines), (d) letter-of-credit rights (other than to the extent the security interest in such letter of credit right may be perfected by the filing (xii) without duplication of amounts deducted from Excess Cash Flow in prior of UCC financing statements), (e) commercial tort claims with a value, individually, of less than periods and, at the option of the Borrower, (A) the aggregate consideration required to be $2,500,000, (f) any governmental or regulatory licenses, authorizations, certificates, charters, paid in cash by the Borrower and its Restricted Subsidiaries pursuant to binding contracts franchises, approvals and consents (whether federal, state or otherwise) to the extent a security Contract Consideration (B) any interest therein is prohibited or restricted thereby or requires any consent, acknowledgment or planned cash expenditures by the Borrower or any of its Restricted Subsidiaries (the authorization from a Governmental Authority not obtained (without any requirement to obtain Planned Expenditures (A) and (B), relating such consent, acknowledgment or authorization) after giving effect to the applicable anti- to acquisitions or other Investments, capital expenditures, Restricted Payments (described 22 23 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
assignment provisions of the UCC or other applicable Law other than proceeds and receivables agree that the cost, burden or difficulty of obtaining such a security interest or perfection thereof thereof, the assignment of which is expressly deemed effective under the UCC or other applicable (including any material adverse tax consequences to Parent Guarantor, the Borrower, or any Law notwithstanding such prohibition, (g) any lease, license or agreement (not otherwise subject Subsidiary of the Borrower) are excessive in relation to the benefit to the Lenders of the security to clause (h) below) or any property that is subject to a capital lease, purchase money security to be afforded thereby; provided that solely with respect to any English law floating charge, interest or similar arrangement, in each case permitted by the Loan Documents, to the extent that Excluded Assets may, if agreed by the Borrower and the Administrative Agent, exclude fewer a grant of a security interest therein (x) would violate or invalidate such lease, license or agreement assets. Notwithstanding the foregoing, Excluded Assets shall not include any proceeds, products, or purchase money security interest or similar arrangement or create a right of termination in favor substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions or of any other party thereto (other than Parent Guarantor, the Borrower or any of its Subsidiaries) replacements would otherwise constitute Excluded Assets). after giving effect to the applicable anti-assignment provisions of the UCC or other applicable Law (other than proceeds and receivables thereof, the assignment of which is expressly deemed Excluded Taxes effective under the UCC or other applicable Law notwithstanding such prohibition) to the extent any other recipient of any payment to be made by or on account of any obligation of the Borrower such approval, consent or authorization is not obtained or (y) would require governmental or hereunder, (a) Taxes imposed on (or measured by) net income (however denominated), franchise regulatory approval, consent or authorization not obtained (without any requirement to obtain such Taxes, branch profits Taxes or any similar Tax, (i) by the jurisdiction under the laws of which such approval, consent or authorization) after giving effect to the applicable anti-assignment provisions recipient is organized or in which its principal office is located or, in the case of any Lender, in of the UCC or other applicable Law, other than proceeds and receivables thereof, the assignment which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) any of which is expressly deemed effective under the UCC or other applicable Law notwithstanding withholding t Section 2.20(e) or (f); (c) in such prohibition, (h) assets to the extent the pledge thereof or grant of security interests therein (x) the case of a Lender, U.S. federal withholding Taxes that are (or would be) required to be withheld is prohibited or restricted by any applicable Law, rule or regulation or would require any consent, pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan approval or authorization of any governmental or regulatory authority not obtained (without any or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.21) requirement to obtain such any consent, approval or authorization) after giving effect to the or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to applicable anti-assignment provisions of the UCC or other applicable Law (other than proceeds Section 2.20, amounts with respect to such Taxes were payable either and receivables thereof, the assignment of which is expressly deemed effective under the UCC or immediately before such Lender became a party hereto or to such Lender immediately before it other applicable Law notwithstanding such prohibition), (y) would render such asset invalid or changed its lending office; (d) U.S. backup withholding Taxes; and (e) any Taxes imposed under unenforceable under applicable Law (solely with respect to any intellectual property), or (z) is FATCA. prohibited by any contract or would require any consent, approval, license or other authorization of any third party (provided that such requirement existed on the Closing Date or at the time of the Existing Facilities Refinancing acquisition of such asset, as applicable, and was not incurred in contemplation thereof (other than other obligations (other than unasserted contingent obligations) (and termination of commitments in the case of capital leases and purchase money financings)) or governmental or regulatory thereunder and release of all guarantees, liens and security interests related thereto) of the Target authority not obtained (without any requirement to obtain such consent, approval, license or other and certain of its subsidiaries with respect to the Existing Target Credit Agreement and Existing authorization), other than to the extent such prohibition or restriction is ineffective under the UCC Target Mortgage Loan Agreement. or other applicable Law, (i) assets to the extent a security interest in such assets would result in material adverse tax consequences to the Borrower or any of its Subsidiaries as reasonably Existing Target Credit Agreement determined by the Borrower in consultation with the Administrative Agent, (j) any leasehold or 2018 among Target, certain subsidiaries of Target, the lenders party thereto, JPMorgan Chase freehold interest in any real property (and improvements and fixtures relating thereto), (k) any Bank N.A., as administrative agent, and the other agents and parties party thereto. Excluded Account, (l) Capital Stock in Immaterial Subsidiaries and Excluded Subsidiaries (other Existing Target Mortgage Loan Agreement than first tier CFCs and first tier CFC Holdcos that are Restricted Subsidiaries; provided that in dated as of July 1, 2015 between 1334 York, LLC and HSBC Bank USA, National Association the case of any first tier CFC that is not organized in a Covered Jurisdiction or first tier CFC and the other lenders and agents named therein. Holdco, the pledge of the Capital Stock of such Subsidiary shall be limited to no more than 65% of the total issued and outstanding Capital Stock of such first tier CFC or first tier CFC Holdco; Existing Target Notes provided, that, for the avoidance of doubt, the pledged Capital Stock of the Guarantors will not be an indenture dated as of December 12, 2017, entered into among, inter alios, the Target as Issuer, subject to such limitation), (m) in the case of any U.S. Loan Party, any assets located in, or the Initial Subsidiary Guarantors party thereto, and the U.S. Bank National Association as trustee. governed by, any non-U.S. jurisdiction law or regulation (other than (i) Capital Stock of CFCs that does not constitute an Excluded Asset pursuant to clause (l) above, (ii) assets that can be perfected Existing Target Notes Indenture by the filing of a UCC financing statement and (iii) any material intellectual property located in a entered into among, inter alios, the Target as Issuer, the Initial Subsidiary Guarantors party thereto, Covered Jurisdiction), (n) any other assets excluded by application of the Agreed Security and the U.S. Bank National Association as trustee, governing the Existing Target Notes, as may Principles; and (o) those assets as to which the Administrative Agent and the Borrower reasonably be amended or supplemented from time to time. 24 25 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Expiring Credit Commitment Section Federal Funds Effective Rate 2.27(g). on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Extended Class Section 2.23(a). Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent Extended Revolving Credit Commitments from three Federal funds brokers of recognized standing selected by it; provided that if the Federal in Section 2.23(a). Funds Effective Rate is less than zero, it shall be deemed to be zero for the purposes of this Agreement. Extended Term Loans Section 2.23(a). Financial Covenant aning ascribed to it in Section 6.01. Extending Lender Section 2.23(b). Foreign Lender Extension Amendment Section 2.23(c). Foreign Pension Plan any pension plan, pension undertaking, supplemental Extension Arranger Section 2.23(a). pension, retirement savings or other retirement income plan, obligation or arrangement or any kind that is not subject to U.S. law and that is established, maintained or contributed to by any Loan Extension Election Section 2.23(b). Party or any of its Subsidiaries or Affiliates in respect of which any Loan Party or any of its Extension Fee Section 2.25(d). Subsidiaries or Affiliates has any liability, obligation or contingent liability. Extension Request Section 2.23(a). Fronting Exposure (a) with respect to the L/ Facility Guaranty the Administrative Agent and the other Secured Parties, substantially in the form of Exhibit F-1 obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the hereto, or in another form reasonably satisfactory to the Administrative Agent and the Borrower. terms hereof, and (b) Facility Guaranty Joinder an agreement, substantially in the form of Annex participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance I to the Facility Guaranty, or in another form reasonably satisfactory to the Administrative Agent with the terms hereof. and the Borrower, pursuant to which a Subsidiary becomes a party to, and bound by, the terms of the Facility Guaranty. Governmental Authority nation, or of any political subdivision thereof, whether state or local, and any agency, authority, FATCA instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to (a) current Sections 1471 through 1474 of the Code, as of the date of this Agreement government (including any supra-national bodies such as the European Union or the European (or any amended or successor version that is substantively comparable and not materially more Central Bank). onerous to comply with), any current or future associated regulations or official interpretations thereof; Granting Lender Section 9.04(i). (b) any treaty, law, regulation or other official guidance enacted in any other Grantor from time to time party to any Security Document, in jurisdiction, or relating to an intergovernmental agreement between the United States and any other its capacity as a grantor, pledgor, obligor, chargor or similar capacity thereunder. jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or Group Member (c) any agreement (including any intergovernmental agreement) pursuant to the Group Borrower and its Restricted Subsidiaries. implementation of paragraphs (a) or (b) above with the IRS, the US government or any governmental or taxation authority in any other jurisdiction. GS Bank FCPA Section 3.25. Guarantor its capacity as a guarantor of the Obligations and its respective successors and assigns, until the 26 27 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Initial Loans Interest Payment Date (a) with respect to any ABR Loan, April 15th, July 15th , October 15th and January 15th and the Maturity Date provided that if such day is not a Initial Revolving Credit Commitment Business Day, the Interest Payment Date shall be the next succeeding Business Day and (b) with its Revolving Credit C respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of name in Schedule 2.01 which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of applicable Assignment and Acceptance, and as may be amended from time to time pursuant to the terms hereof. The aggregate amount of Initial Revolving Credit Commitments as of the Effective b Date is $400,000,000. applicable to such Borrowing. Initial Revolving Credit Commitment Maturity Date shall mean October 3, 2024. Interest Period commencing on the date of such Borrowing and ending on the numerically corresponding day (or, Initial Revolving Credit Lender if there is no numerically corresponding day, on the last day) in the calendar month that is one, Credit Commitments and/or Initial Revolving Credit Loans made pursuant thereto. two, three or six months (or 12 months if agreed to by all Lenders of such Loans) thereafter, as the Borrower may elect; provided, however, that (a) if any Interest Period would end on a day other Initial Revolving Credit Loan to such term in Section than a Business Day, such Interest Period shall be extended to the next succeeding Business Day 2.01(b). unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period that Initial Term Loans Section 2.01(a). begins on the last Business Day of a calendar month (or on a day for which there is no numerically Initial Term Loan Commitment corresponding day in the calendar month at the end of such Interest Period) shall end on the last make an Initial Term Loan to the Borrower pursuant to Section 2.01(a) in an aggregate amount not Business Day of the calendar month at the end of such Interest Period and (c) no Interest Period Schedule 2.01 under the caption for any Loan shall extend beyond the maturity date of such Loan. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period. amount of the Initial Term Loan Commitments as of the Effective Date is $500,000,000. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of Initial Term Loan Facility nts and the such Borrowing. Initial Term Loans made pursuant thereto. Internal Control Event Initial Term Loan Lender management or other employees who have a significant role in, the Loan Parties or any of their Commitments and/or Initial Term Loans made pursuant thereto. Laws. Initial Term Loan Maturity Date Internally Generated Cash Intercreditor Agreement and its Restricted Subsidiaries not constituting proceeds of the incurrence of Indebtedness (other of Indebtedness secured by Liens on the Collateral which are intended to rank equal in priority to than the incurrence of Revolving Loans, extensions of credit under any other revolving credit or the Liens on the Collateral securing the Obligations under this Agreement (but without regard to similar facility or other short-term Indebtedness) by such Person or any of its Restricted the control of remedies), at the option of the Borrower and the Administrative Agent acting Subsidiaries. together in good faith, any of (a) the Closing Date Intercreditor Agreement or (b) (i) any other intercreditor agreement substantially in the form of Exhibit D, together with any changes thereto Interpolated Screen Rate which are reasonably acceptable to the Administrative Agent and the Borrower or (ii) a customary interpolating on a linear basis between: (a) the applicable Screen Rate for the longest period (for intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent which that Screen Rate is available) which is less than the Interest Period of that Loan; and (b) the and the Borrower, which agreement shall provide that the Liens on the Collateral securing such applicable Screen Rate for the shortest period (for which that Screen Rate is available) which Indebtedness shall rank equal in priority to the Liens on the Collateral securing the Obligations exceeds the Interest Period of that Loan, each as of 11:00 a.m. London time on the Quotation Day under this Agreement (but without regard to the control of remedies), in each case with such for the currency of that Loan. modifications thereto as the Administrative Agent and the Borrower may agree. IRS 30 31 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
ISP Laws guideline, regulation, ordinance, code and administrative or judicial precedent or authority, version thereof as may be in effect at the time of issuance). including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and each applicable administrative order, Issuer Documents dit, the Letter of Credit directed duty, request, license, authorization and permit of, and agreement with, any Governmental Application, and any other document, agreement and instrument entered into by the L/C Issuer Authority, in each case whether or not having the force of law. and the Borrower (or any Restricted Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit. Lead Arrangers organ Chase Bank N.A., Citigroup Global Markets Limited and Citizens Bank, N.A., each in its capacity as a lead Judgment Currency shall have the meaning assigned to such term in Section 9.21. bookrunner and lead arranger. L/C Advance Legal Reservations (a) the principle that equitable remedies are remedies which funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share. may be granted or refused at the discretion of the court and principles of good faith and fair dealing, (b) applicable Bankruptcy Laws, (c) the existence of timing limitations with respect to the bringing L/C Borrowing of claims under applicable limitation laws and the defenses of acquiescence, set-off or Letter of Credit which has not been reimbursed on the date when made or refinanced as a counterclaim and the possibility that an undertaking to assume liability for, or to indemnify a Revolving Credit Borrowing. Person against, non-payment of stamp duty may be void, (d) the principle that in certain jurisdictions and under certain circumstances a Lien granted by way of fixed charge may be re- L/C Credit Extension characterized as a floating charge or that security purported to be constituted as an assignment may thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof. be re-characterized as a charge, (e) the principle that additional interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus L/C Exposure tion, the total L/C Obligations. void, (f) the principle that a court may not give effect to an indemnity for legal costs incurred by The L/C Exposure of any Revolving Credit Lender at any time shall be its Pro Rata Share of the an unsuccessful litigant, (g) the principle that the creation or purported creation of collateral over total L/C Exposure at such time; provided that in the case of Section 2.01(b), Section 2.26(a)(i) any claim, other right, contract or agreement which is subject to a prohibition on transfer, and clause (iii) of the proviso to Section 2.27(a) when a Defaulting Lender shall exist, the L/C assignment or charging may be void, ineffective or invalid and may give rise to a breach of the Exposure of any Revolving Credit Lender shall be adjusted to give effect to any reallocation contract or agreement (or contract or agreement relating to or governing the claim or other right) effected in accordance with Section 2.25(c). over which collateral has purportedly been created, (h) similar principles, rights and defenses under L/C Issuer Initial L/C Issuers the laws of any relevant jurisdiction and (i) any other matters which are set out as qualifications or any other Lender that becomes an L/C Issuer in accordance with Section 2.26(k), in its capacity as reservations (however described) as to matters of law in any legal opinion delivered pursuant to an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. the Loan Documents. L/C Obligations Lenders shall mean (a) the Persons listed on Schedule 2.01 (other than any such Person available to be drawn under all outstanding Letters of Credit plus the aggregate of all that has ceased to be a party hereto pursuant to an Assignment and Acceptance) and (b) any Person Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount that has become a party hereto pursuant to an Assignment and Acceptance, including, without available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be limitation, the Initial Term Loan Lenders and the Initial Revolving Credit Lenders (including, as determined in accordance with Section 2.26. For all purposes of this Agreement, if on any date of the context so requires, any L/C Issuer and the Swing Line Lender). determination a Letter of Credit has expired by its terms but any amount may still be drawn Letter of Credit thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed be a standby letter of credit. g available to be drawn. Letter of Credit Application Latest Maturity Date or amendment of a Letter of Credit in the form from time to time in use by the relevant L/C Issuer applicable to any Class of Loans or Commitments with respect to such Loans or Commitments at and reasonably satisfactory to the Borrower. such date of determination, including, for the avoidance of doubt, the latest maturity date of any Incremental Loans, Incremental Loan Commitments, Other Loans or Extended Term Loans, in Letter of Credit Expiration Date each case, as extended from time to time in accordance with this Agreement. to the scheduled Latest Maturity Date then in effect for the Participating Revolving Credit Commitments (taking into account the Maturity Date of any conditional Participating Revolving 32 34 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.1776797407_20
Credit Commitment that will automatically go into effect on or prior to such Maturity Date (or, if Loan Escrow Condition e requirement that in the event that the Initial such day is not a Business Day, the next preceding Business Day)). Funding Date has occurred, and (a) the Closing Date does not take place on or prior to the date that is two Business Days after the Initial Funding Date (or such longer period as the Letter of Credit Issuer Sublimit (a) BNP, Administrative Agent may agree in its sole discretion) (as extended in accordance with the $75,000,000 (or such other amount as may be agreed between such L/C Issuer and the Borrower Non-Escrow Period (b) the Early from time to time), (b) GS Bank, $75,000,000 (or such other amount as may be agreed between Termination Amount payment has not otherwise already been made, the Borrower shall no later such L/C Issuer and the Borrower from time to time) and (c) any other Person that is a L/C Issuer, than the Loan Escrow Funding Date, with respect to the aggregate principal amount of any Term such other amount as may be agreed between such other L/C Issuer and the Borrower at the time Loans outstanding at such time, enter into a loan escrow agreement or arrangement (including with such Person becomes a L/C Issuer or from time to time thereafter. ilar arrangement) (collectively, along with any Loan Escrow Letter of Credit Sublimit (a) Documents $150,000,000 (as may be adjusted pursuant to Section 2.26 and/or as may be modified by the with respect to the conditions to release from escrow), provided that the escrow arrangement Borrower and each L/C Issuer) and (b) the aggregate amount of the Participating Revolving Credit provisions set forth in the Commitment Letter are reasonably satisfactory to the Administrative Commitments at such time. The Letter of Credit Sublimit is part of, and not in addition to, the Agent. Participating Revolving Credit Commitments. Loan Escrow Documents the definition LIBO Rate Borrowing for any Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the commencement of such Interest Period Loan Escrow Funding Date (a) by reference to ICE Benchmark Administration LIBO Rate for deposits in dollars (as set forth Business Day of the Non-Escrow Period; provided that the Non-Escrow Period shall be extended by any commercially available source providing quotations of LIBO Rate selected by the by successive periods of one Business Day upon delivery of a written notice from a Responsible Administrative Agent) for a period equal to such Interest Period; or (b) if the rate in clause (a) is Officer of the Borrower stating that the Borrower expects in good faith to consummate the unavailable for the Interest Period, the Interpolated Screen Rate or (c) if the rate in clauses (a) and Acquisition in accordance with the terms of the Acquisition Agreement on such additional (b) Business Day, which notice shall be delivered on or prior to 5:00 p.m. (New York City time) on Administrative Agent to be the average of the rates per annum at which deposits in Dollars are the last Business Day of the applicable Non-Escrow Period (after giving effect to any previous offered for such relevant Interest Period to major banks in the London interbank market in London, extensions permitted hereby). England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest Period. Loan Parties arties and the Non-U.S. Loan Parties. Limited Condition Transaction (a) any acquisition of any assets, business or Person, other investment or similar transaction (whether by merger, amalgamation, consolidation Loans or other business combination or the acquisition of Capital Stock or otherwise) permitted Loans, Refinancing Loans or Swing Line Loans, as the context may require. hereunder by one or more of the Borrower and its Restricted Subsidiaries whose consummation is not conditioned on the availability of, or on obtaining, third party financing , (b) any redemption, Longstop Date provided, that, in the event that the repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring Outside Date (as defined in the Merger Agreement as in effect as of June 16, 2019) is extended irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and pursuant to Clause 7.1(b)(i) thereof, such date shall be extended to the extended Outside Date discharge or repayment and (c) any Restricted Payment requiring irrevocable notice in advance (provided that such extension shall not exceed ninety (90) days from such date). thereof. "Luxembourg" shall mean the Grand Duchy of Luxembourg. Loan Documents Agreement, the Facility Guaranty, any Intercreditor Agreement, any Additional Intercreditor "Luxembourg Companies' Register" shall mean the Luxembourg Register of Commerce Agreement, the Security Documents, each Incremental Loan Assumption Agreement, each and Companies (R.C.S. Luxembourg). Refinancing Amendment, each Extension Amendment, the Subsidiary Revolver Borrower Joinder, the promissory notes, if any, executed and delivered pursuant to Section 2.04(e) and together with "Luxembourg Loan Party" shall mean the each Non-U.S. Loan Party incorporated under all schedules, exhibits, annexes and other attachments thereto. the laws of Luxembourg. 34 35 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Major Representations Maximum Rate Section 9.09. Borrower in Sections 3.01(a)(i) (with respect to the organizational existence of the Loan Parties only), 3.01(a)(ii)(B), 3.02(a), 3.04, 3.14, 3.20(a), 3.24(a) and the second sentence of Section 3.25 Merger Sub (in the case of Section 3.24(a) and 3.25 solely with respect to the use of the proceeds of the Initial to this Agreement. Term Loans). Master Agreement Multiemployer Plan (37) of ERISA. Material Adverse Effect (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties or condition (financial or otherwise) of Non-Consenting Lender means, in the event that (a) the Borrower or the Administrative the Loan Parties and their Subsidiaries taken as a whole; (b) a material impairment of the ability Agent has requested that the Lenders consent to a departure or waiver of any provisions of the of the Loan Parties to perform their obligations under the Loan Documents; or (c) a material Loan Documents or agree to any amendment thereto, (b) the consent, waiver or amendment in impairment of the rights and remedies of the Administrative Agent or the Lenders under the Loan question requires the agreement of each Lender, all affected Lenders or all the Lenders with respect Documents or a material adverse effect upon the legality, validity, binding effect or enforceability to a certain Class or Classes of the Loans and/or Commitments and (c) the Required Lenders or against the Loan Parties of the Loan Documents. In determining whether any individual event Required Class Lenders, as applicable, have agreed to such consent, waiver or amendment, any would result in a Material Adverse Effect, notwithstanding that such event in and of itself does not Lender who does not agree to such consent, waiver or amendment. have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event and all other then existing events described in the applicable provision since Non-Defaulting Lender the applicable date would result in a Material Adverse Effect. Lender. Material Contract Non-Expiring Credit Commitment to which such Loan Party is a party that is deemed to be a material contract or material definitive Section 2.27(g). agreement under any Securities Laws, including the types of contracts specified in item Non-Extended Class Section 2.23(a). 601(b)(10)(ii) of Regulation S-K, and in the event that at any time hereafter the Borrower ceases to be required to comply with the Securities Laws, then the same definitions shall continue to apply Non-Extended Revolving Credit Commitments for purposes of this Agreement and the other Loan Documents. term in Section 2.23(a). Material Indebtedness Non-Extended Term Loans Section Restricted Subsidiaries in an aggregate principal amount exceeding $25 million. For purposes of 2.23(a). determining the amount of Material Indebtedness at any time, (a) the amount of the obligations in respect of any Swap Contract at such time shall be calculated at the Swap Termination Value Non-extension Notice Date Section thereof, (b) undrawn committed or available amounts shall be included and (c) all amounts owing 2.26(b)(iii). to all creditors under any combined or syndicated credit arrangement shall be included. Non-U.S. Loan Parties arantor incorporated or established and/or Material Subsidiary having its registered office outside the United States, any state thereof or the District of Columbia. Subsidiary. Non-U.S. Security Documents means (a) each security or pledge agreement listed on Maturity Date n (a) the Initial Term Loan Maturity Date, (b) the Initial Schedule 1.01, and (b) each other security or pledge agreement executed by a Non-U.S. Loan Party Revolving Credit Commitment Maturity Date, (c) with respect to any Class of Extended Term (or by any Loan Party under a law other than the laws of the United States or any State thereof) Loans or Extended Revolving Credit Commitments, the final maturity date as specified in the pursuant to Section 5.14 in form and substance reasonably satisfactory to the Administrative Agent applicable Extension Request accepted by the respective Lender or Lenders, (d) with respect to and the Borrower. any Refinancing Term Loans or Refinancing Revolving Credit Commitments, the final maturity date as specified in the applicable Refinancing Amendment, and (e) with respect to any NPL Incremental Loans or Incremental Revolving Credit Commitments, the final maturity date as specified in the applicable Incremental Loan Assumption Agreement; provided that, in each case, Obligations if such day is not a Business Day, the immediately preceding Business Day. and description owing by any Loan Party (or with respect to any Swap Contracts or Treasury 36 37 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Services Agreement, any Restricted Subsidiary), to any Secured Party, including principal, June 30, 2019, and for the comparable period of the prior fiscal year as filed on Form 10-Q with interest, charges, fees, premiums, indemnities and expenses, however evidenced, whether as the Securities and Exchange Commission. principal, surety, endorser, guarantor or otherwise, arising under any of the Loan Documents, the Swap Contracts or the Treasury Services Agreements (as applicable) whether now existing or Original Revolving Credit Commitments hereafter arising, whether arising before, during or after the initial or any renewal term of the Loan in Section 2.23(a). Documents, the Swap Contracts or the Treasury Services Agreements (as applicable) or after the commencement of any case with respect to any Loan Party under the Bankruptcy Code or any Original Term Loans Section 2.23(a). other Bankruptcy Law or any other insolvency proceeding (and including any principal, interest, Letter of Credit fees, fees, costs, expenses and other amounts which would accrue and become due Other Connection Taxes but for the commencement of such case, whether or not such amounts are allowed or allowable in Agent, Taxes imposed as a result of a present or former connection between such Lender or whole or in part in such case or similar proceeding), whether direct or indirect, absolute or Administrative Agent, as applicable, and the jurisdiction imposing such Tax (other than contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, connections arising solely from such Lender or Administrative Agent, as applicable, having secured or unsecured. executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or OFAC enforced any Loan Document. of the Treasury. Other Loans Section 2.22(a). Offered Amount Section 2.12(c)(iv)(A). Other Revolving Credit Loan Commitments Offered Discount Section term in Section 2.22(b). 2.12(c)(iv)(A). Other Revolving Credit Loans Section Offering Memorandum means the offering memorandum in relation to the Senior 2.22(b). Secured Notes issued on October 2, 2019. Other Taxes OID recording, filing Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, Organization Documents (a) with respect to any corporation, the certificate or otherwise with respect to, any Loan Document except any such Taxes that are Other Connection or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents Taxes imposed with respect to an assignment, grant of a participation, designation of a new office with respect to any non-US jurisdiction); (b) with respect to any limited liability company, the for receiving payments by or on account of the Borrower or other transfer (other than an certificate or articles of formation or organization and operating agreement; (c) with respect to any assignment or designation of a new office made pursuant to Section 2.21). partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or Other Term Loans Section 2.22(b). notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if Outstanding Amount (a) with respect to the Term Loans, Revolving Credit applicable, any certificate or articles of formation or organization of such entity; (d) with respect Loans and Swing Line Loans on any date, the outstanding amount thereof after giving effect to to any other form of entity, such other organizational documents required by local Requirements any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans of Law or customary under such jurisdiction to document the formation and governance principles (including any refinancing of outstanding Unreimbursed Amounts under Letters of Credit or L/C of such type of entity; and (e) in each case, all shareholder or other equity holder agreements, Credit Extensions as a Revolving Credit Borrowing) and Swing Line Loans, as the case may be, voting trusts and similar arrangements to which such Person is a party. occurring on such date; and (b) with respect to any L/C Obligations on any date, the outstanding amount thereof on such date after giving effect to any related L/C Credit Extension occurring on Original Class Section 2.23(a). such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding Unreimbursed Amounts under related Letters of Credit (including any refinancing Original Financial Statements (a) the Audited Financial Statements and of outstanding Unreimbursed Amounts under related Letters of Credit or related L/C Credit (b) the unaudited consolidated balance sheets and unaudited condensed consolidated statements of Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available income, comprehensive income and changes in cash flow of Target for the fiscal quarter ended for drawing under related Letters of Credit taking effect on such date. 38 39 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Parent Guarantor Person person, corporation, limited liability company, trust, joint venture, association, company, partnership, limited partnership, Governmental Authority or other Participating Member State entity. the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union. Plan any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, Pari Passu Indebtedness (a) with respect to the Borrower, any Indebtedness and in respect of which any Borrower or any ERISA Affiliate is (or, if such plan were terminated, that ranks pari passu in right of payment and security to the Loans; and (b) with respect to the Guarantors, any Indebtedness that ranks pari passu in right of payment and security to such of ERISA. Planned Expenditures (b)(xii) in Pari Ratable Share (a) with respect to the Term Loans, a fraction, the numerator of which is the aggregate outstanding principal amount of the Term Loans and the denominator of which is the total aggregate principal amount of all then Platform Section 9.01. outstanding Pari Passu Indebtedness and Term Loans and (b) with respect to any other class of Pari Passu Indebtedness, a fraction, the numerator of which is the aggregate principal amount of Prime Rate such class of Pari Passu Indebtedness and the denominator of which is the total aggregate principal BNP as its prime rate in effect at its principal office in New York City and notified to the Borrower. amount of all then outstanding Pari Passu Indebtedness and Term Loans. Pro Rata Share (a) with respect to all payments, computations Participant Register Section 9.04(f). and other matters relating to the Term Loans or Term Commitments of any Class held by any Lender, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator Participating Revolving Credit Commitments (a) the Initial Revolving Credit of which is the amount of the Term Loans, and if applicable, Term Commitments of such Class Commitments (including (unless otherwise selected by the Borrower) any Extended Revolving held by such Lender at such time and the denominator of which is the aggregate amount of all Credit Commitments in respect thereof) and (b) those additional Revolving Credit Commitments Term Loans, and if applicable, all Term Commitments of such Class at such time, (b) with respect (including (unless otherwise selected by the Borrower) any Extended Revolving Credit to all payments, computations and other matters (including participation in Letters of Credit) Commitments in respect thereof) established pursuant to an Incremental Loan Assumption relating to the Revolving Credit Loans or Revolving Credit Commitments of any Class held by Agreement, Refinancing Amendment or Extension Amendment for which an election has been any Lender, a fraction (expressed as a percentage, carried out to the ninth decimal place), the made to include such Commitments for purposes of the issuance of Letters of Credit or the making numerator of which is the amount of the Revolving Credit Commitments of such Class held by of Swing Line Loans; provided, that, with respect to clause (b), the effectiveness of such election such Lender at such time and the denominator of which is the aggregate amount of all Revolving may be made conditional upon the maturity of one or more other Participating Revolving Credit Credit Commitments of such Class at such time (provided that if such Revolving Credit Commitments. At any time at which there is more than one Class of Participating Revolving Commitments have been terminated, then the Pro Rata Share of such Lender shall be determined Credit Commitments outstanding, the mechanics and arrangements with respect to the allocation based on the Pro Rata Share of such Lender immediately prior to such termination and after giving of Letters of Credit and Swing Line Loans among such Classes will be subject to procedures agreed effect to any subsequent assignments made pursuant to the terms hereof) and (c) for all other to by the Borrower and the Administrative Agent. purposes, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the aggregate amount of the Term Loans, and if applicable, Term Participating Revolving Credit Lender Commitments, of each Class, and of the Revolving Credit Commitments of each Class, in each Revolving Credit Commitment. case held by such Lender at such time and the denominator of which is the aggregate amount of all Term Loans, and if applicable, all Term Commitments, of each Class, and of all Revolving Participating Term Lender Section Credit Commitments of each Class at such time (provided that if the Commitments of any Class 2.12(c)(iii)(B). have been terminated, then the Pro Rata Share of such Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any PBGC subsequent assignments made pursuant to the terms hereof). During any period in which there is 2.05(a), PCAOB rd. 2.26(d)(ii) and 2.27(d)(ii) Permitted Expenditures (b)(xii) adjusted to give effect to any reallocation effected in accordance with Section 2.25(c). 40 41 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
PTE Refinancing Revolving Loan Section Labor, as any such exemption may be amended from time to time. 2.24(b). Public Lender uch term in Section 9.01. Refinancing Term Commitments Section 2.24(a). QFC Section 9.23(b). Refinancing Term Lender Section Qualifying Term Lender Section 2.24(c). 2.12(c)(iv)(C). Refinancing Term Loan Section Quotation Day y period for which interest is to be 2.24(b). determined, two Business Days before the first day of that period. Register Section 9.04(d). Real Estate or other estate) in and to any and all parcels of or interests in real property owned, leased or Registered Public Accounting Firm operated by the Borrower, any Group Member or any of their Subsidiaries, whether by lease, Laws and shall be independent of the Borrower, any Group Member and their Subsidiaries as license or other means, and the buildings, structures, parking areas and other improvements prescribed by the Securities Laws. thereon, now or hereafter owned by the Borrower, any Group Member or any of their Subsidiaries, including all fixtures, easements, hereditaments, appurtenances, rights-of-way and similar rights Regulation D egulation D of the Board as from time to time in effect and relating thereto and all leases, tenancies and occupancies thereof now or hereafter owned by the all official rulings and interpretations thereunder or thereof. Borrower, any Group Member or any of their Subsidiaries. Regulation T Refinanced Debt Section 2.24(a). all official rulings and interpretations thereunder or thereof. Refinancing Amendment shall have the meaning assigned to such term in Section Regulation U 2.24(f). all official rulings and interpretations thereunder or thereof. Refinancing Commitments Section Regulation X 2.24(a). all official rulings and interpretations thereunder or thereof. Refinancing Facility Closing Date Rejection Notice Section 2.13(g). Section 2.24(d). Related Fund all mean, with respect to any Lender that is a fund or commingled Refinancing Lenders Section 2.24(c). investment vehicle that invests in bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such Refinancing Loan d/or any Refinancing investment advisor. Revolving Loans, as the context may require. Related Parties Refinancing Loan Request Section partners, members, controlling persons, directors, officers, employees, agents, advisors, 2.24(a). representatives and successors and assigns of such Person Refinancing Revolving Credit Commitments Release term in Section 2.24(a). Repayment Date Section 2.11(a). Refinancing Revolving Credit Lender gned to such term in Section 2.24(c). Repricing Transaction (a) the prepayment, refinancing, substitution or replacement of all or a portion of the Initial Term Loans with the incurrence by the Borrower or any Subsidiary of any senior secured loan financing, the primary purpose of which (as determined 42 43 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Specified Discount Section Master Agreement 2.12(c)(ii)(A). such obligations or liabilities under any Master Agreement. Specified Discount Prepayment Response rm Swap Termination Value in Section 2.12(c)(ii)(A). after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out Specified Discount Prepayment Response Date and termination value(s) determined in accordance therewith, such termination value(s), and (b) term in Section 2.12(c)(ii)(A). for any date prior to the date referenced in clause (a), the amount(s) determined as the xxxx-to- market value(s) for such Swap Contracts, as determined based upon one or more mid-market or Specified Discount Proration Section other readily available quotations provided by any recognized dealer in such Swap Contracts 2.12(c)(ii)(C). (which may include a Lender or any Affiliate of a Lender). Specified Event of Default (a) any Event of Default Swing Line Borrowing mean a borrowing of a Swing Line Loan pursuant to described in Sections 7.01(a), 7.01(f) or 7.01(g) or (b) Section 2.27. pursuant to the paragraph immediately following Section 7.01(j), following any other Event of Default. Swing Line Exposure outstanding Swing Line Loans at such time. The Swing Line Exposure of any Revolving Credit SPV Section 9.04(i). Lender at any time shall be the sum of (a) its Pro Rata Share of the total Swing Line Exposure at such time related to Swing Line Loans other than any Swing Line Loans made by such Lender in SPV Register Section 9.04(i). its capacity as a Swing Line Lender and (b) if such Lender shall be a Swing Line Lender, the principal amount of all Swing Line Loans made by such Lender outstanding at such time (to the Submitted Amount Section extent that the other Revolving Credit Lenders shall not have funded their participations in such 2.12(c)(iii)(A). Swing Line Loans); provided that in the case of Section 2.01(b), clause (y) of the proviso to Section Submitted Discount Section 2.26(a)(i) and clause (iii) of the proviso to Section 2.27(a) when a Defaulting Lender shall exist, 2.12(c)(iii)(A). the Swing Line Exposure of any Revolving Credit Lender shall be adjusted to give effect to any reallocation effected in accordance with Section 2.25(c). Subsidiary Revolver Borrower d Swing Line Lender capacity as a provider of Swing Line Loans or any successor swing line lender hereunder. accordance with and subject to the conditions in Section 1.10(e) hereof. Swing Line Loan Section 2.27(a). Subsidiary Revolver Borrower Joinder Swing Line Loan Notice Section Section 1.10. 2.27(b). Swap Contract (a) any and all rate swap transactions, basis swaps, credit Swing Line Obligations the aggregate derivative transactions, forward rate transactions, commodity swaps, commodity options, forward Outstanding Amount of all Swing Line Loans. commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, Swing Line Sublimit (a) $50,000,000 (as interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, may be adjusted pursuant to Section 2.27) and (b) the aggregate amount of the Participating collar transactions, currency swap transactions, cross-currency rate swap transactions, currency Revolving Credit Commitments. The Swing Line Sublimit is part of, and not in addition to, the options, spot contracts, or any other similar transactions or any combination of any of the foregoing Participating Revolving Credit Commitments. (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and Target the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., Target Group any International Foreign Exchange Master Agreement, or any other master agreement (any such 48 49 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Tax Deduction Treasury Services Provider (a) each Person that is a counterparty to any Taxes or Other Taxes from a payment under a Loan Document. Treasury Services Agreement as of the Closing Date and/or (b) each Person that is an Agent or Lender or any Affiliate of an Agent or Lender counterparty to a Treasury Services Agreement Taxes mean any and all present or future taxes, levies, imposts, duties, deductions, (including any Person who was an Agent or Lender (or any Affiliate thereof) as of the Closing charges or withholdings (including backup withholdings), assessments, fees or other charges Date or the date it enters into such Treasury Services Agreement but subsequently ceases to be an imposed by any Governmental Authority, including any interest, penalties and additions to tax Agent or Lender (or Affiliate thereof)) and/or (c) any other Person from time to time designated related thereto. in writing by the Borrower and approved in writing by the Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed); provided that, if such Person is not Term Borrowing an Agent, Lead Arranger or a Lender, such Person executes and delivers to the Administrative same Type and, in the case of Eurodollar Loans, having the same Interest Period, made by each of Agent and the Borrower a letter agreement in form and substance reasonably acceptable to the the Term Lenders pursuant to Section 2.01(a). Administrative Agent and the Borrower pursuant to which such Person (i) appoints the Administrative Agent as its agent under the applicable Loan Documents and (ii) agrees to be bound Term Commitment by the provisions applicable to Hedge Counterparties and/or Treasury Services Providers in the Loans to the Borrower as such commitment may be (a) reduced from time to time pursuant to applicable Loan Documents. Section 2.09 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Term Lender pursuant to an Assignment and Assumption, (ii) an Incremental Loan Type Assumption Agreement, (iii) a Refinancing Amendment or (iv) an Extension Amendment. The to which interest on such Loan or on the Loans comprising such Borrowing is determined. For mmitment is set forth in Schedule 2.01 or in the Assignment pur and Assumption, Incremental Loan Assumption Agreement, Extension Amendment or Refinancing Amendment pursuant to which such Lender shall have assumed, increased or UCC decreased its Term Commitment, as the case may be. U.K. Loan Party -U.S. Loan Party incorporated under the laws Term Facilities of England and Wales. including, without limitation, the Initial Term Loan Facility. U.S. Loan Parties Term Lender incorporated or established and/or having its registered office in the United States, any state thereof Term Loan at such time. or the District of Columbia. Term Loans U.S. Person Loans, Extended Term Loans, or Refinancing Term Loans, as the context may require. 7701(a)(30) of the Code. Test Period U.S. Pledge and Security Agreement consecutive fiscal quarters of the Borrower most recently ended as of such date of determination made by the Loan Parties party thereto in favor of the Administrative Agent and the other Secured for which the financial statements set forth in Section 4.10(a)(1) and (2) of Annex I shall have Parties, substantially in the form of Exhibit F-2 hereto, or in another form reasonably satisfactory been delivered (or were required to be delivered) to the Administrative Agent. to the Administrative Agent and the Borrower. Total Outstandings tstanding Amount of all Loans and all U.S. Pledge and Security Agreement Supplement L/C Obligations. substantially in the form of Annex I to the U.S. Pledge and Security Agreement, or in another form reasonably satisfactory to the Administrative Agent and the Borrower, pursuant to which a Treasury Services Agreement Subsidiary becomes a party to, and bound by, the terms of the U.S. Pledge and Security Agreement. Restricted Subsidiary and any Treasury Services Provider relating to treasury, depository, credit card, debit card and cash management services (including controlled disbursement, overdraft, U.S. Tax Compliance Certificate Section 2.20. automatic clearing house fund transfer services, return items and interstate depository network services), or foreign exchange, netting and currency management services or, in each case, any Unreimbursed Amount Section similar services. 2.26(c)(i). 50 51 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
cl have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens or the making SECTION 1.04 Cashless Roll. Notwithstanding anything to the contrary contained of Asset Dispositions, mergers, the conveyance, lease or other transfer of all or substantially all of in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in the assets of the Borrower or the designation of an Unrestricted Subsidiary or the making of connection with any refinancing, extension, loan modification or similar transaction permitted by Investments or Restricted Payments on or following the relevant LCT Test Date and prior to the the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the earlier of the date on which such Limited Condition Transaction is consummated or the definitive Borrower, the Administrative Agent or the Additional Arranger, as the case may be, and such agreement or irrevocable notice, as applicable, for such Limited Condition Transaction is Lender. terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition SECTION 1.05 Limited Condition Transaction. (a) In connection with any action Transaction and other transactions in connection therewith (including any Incurrence of being taken in connection with a Limited Condition Transaction, for purposes of determining Indebtedness and the use of proceeds thereof) have been consummated. compliance with any provision of this Agreement which requires that no Default, Event of Default or Specified Event of Default, as applicable, has occurred, is continuing or would result from any SECTION 1.06 Letters of Credit. Unless otherwise specified herein, the amount of such action, as applicable, such condition shall, at the option of the Borrower, be deemed satisfied, a Letter of Credit at any time shall be deemed to be the amount of the stated amount of such Letter so long as no Default, Event of Default or Specified Event of Default, as applicable, exists on the of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, date the definitive agreements or irrevocable notice, as applicable, for such Limited Condition by its terms or the terms of any Issuer Document related thereto, provides for one or more Transaction are entered into or has been delivered, as applicable. For the avoidance of doubt, if automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be the Borrower has exercised its option under the first sentence of this clause (a), and any Default, deemed to be the amount of the maximum stated amount of such Letter of Credit after giving effect Event of Default or Specified Event of Default occurs following the date the definitive agreements to all such increases, whether or not such maximum stated amount is in effect at such time. or irrevocable notice, as applicable, for the applicable Limited Condition Transaction were entered into or has been delivered, as applicable, and prior to the consummation of such Limited Condition SECTION 1.07 LIBO Rate Discontinuation. Notwithstanding anything to the Transaction, any such Default, Event of Default or Specified Event of Default shall be deemed to contrary contained in this Agreement or the other Loan Documents, if the LIBO Rate is not not have occurred or be continuing for purposes of determining whether any action being taken in available at any time for any reason (including that adequate and reasonable means do not exist connection with such Limited Condition Transaction is permitted hereunder. for ascertaining the LIBO Rate for any requested Interest Period, including because the applicable screen rate is not available or published on a current basis and such circumstances are unlikely to (a) In connection with any action being taken in connection with a Limited Condition be temporary), as reasonably determined by the Borrower and the Administrative Agent, then the Transaction, for purposes of (x) determining compliance with any provision of this Agreement (a) a successor or alternative index rate as the which requires the calculation of the Consolidated Net Senior Secured Leverage Ratio or Administrative Agent (but not, for the avoidance of doubt, any other Lender) and the Borrower Consolidated Net Leverage Ratio; or (y) testing baskets set forth in this Agreement (including may reasonably determine or (b) absent such mutual selection by the Borrower and the baskets measured as a percentage of Pro Forma EBITDA); in each case, at the option of the Administrative Agent, a comparable successor or alternative interbank rate for deposits in dollars that is, at such time, broadly accepted as the prevailing market practice for syndicated leveraged LCT Election is permitted hereunder, shall be deemed to be the date the definitive agreements or irrevocable Agent, in each case pursuant to an amendment to this Agreement and each other applicable Loan notice, as applicable, for such Limited Condition Transaction are entered into or has been Document, in each case among the Borrower and the Administrative Agent (but not, for the LCT Test Date avoidance of doubt, any Lender) that will become effective at 5:00 p.m., New York City time, on Condition Transaction and the other transactions to be entered into in connection therewith the fifth Business Day after the Administrative Agent shall have posted such proposed amendment (including any Incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred to the Lenders in respect of the Loans or Commitments of all similarly and directly affected Classes at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCT Test unless, prior to such time, the Required Lenders in respect of all such affected Classes (acting Date for which consolidated financial statements of the Borrower are available, the Borrower could together as one Class) have delivered to the Administrative Agent written notice that such Lenders have taken such action on the relevant LCT Test Date in compliance with such ratio or basket, do not accept such amendment (which such notice shall note with specificity the particular such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if provisions of the amendment to which such Lenders object); provided that (i) any such successor the Borrower has made an LCT Election and any of the ratios or baskets for which compliance or alternative rate shall be applied by the Administrative Agent in a manner consistent with market was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any practice, (ii) if such successor or alternative rate shall be less than zero, such rate shall be deemed such ratio or basket, including due to fluctuations in Pro Forma EBITDA at or prior to the to be zero for the purposes of this Agreement and (iii) to the extent such market practice is not consummation of the relevant transaction or action, such baskets or ratios will not be deemed to administratively feasible for the Administrative Agent, such successor or alternative rate shall be 54 55 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
reissued for the account of the Administrative Borrower, as agreed between the Administrative SECTION 2.02 Loans. Each Loan shall be made as part of a Borrowing consisting Borrower and the applicable L/C Issuer (acting reasonably)). of Loans made by the Lenders ratably in accordance with their applicable Commitments; provided, however, that the failure of any Lender to make any Loan shall not in itself relieve any other ARTICLE II Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan required to be made by such other THE CREDITS Lender). The Loans comprising any Borrowing shall be in an aggregate principal amount that is (a) an integral multiple of $1,000,000 and not less than $5,000,000 (except to the extent otherwise SECTION 2.01 Commitments. (a) Subject to the terms and conditions set forth provided in an Incremental Loan Assumption Agreement, Refinancing Amendment or Extension herein and relying upon the representations and warranties set forth herein, each Lender having an Amendment) or (b) equal to the remaining available balance of the applicable Commitments. Initial Term Loan Commitment agrees, severally and not jointly, to make Loans to the Borrower denominated in Dollars in up to two draws, (i) initially, on the Initial Funding Date, in an aggregate (a) Each Lender may at its option make any Eurodollar Loan by causing any domestic principal amount not to exceed its pro rata Initial Draw Term Loans or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of and (ii) on the Delayed Draw Funding Date, in an aggregate principal amount not to exceed its pro such option shall not affect the obligation of the Borrower to repay such Loan in accordance with Delayed Draw Term Loans the terms of this Agreement. The Borrower shall not be entitled to request any Borrowing that, if together with the In Initial Term Loans made, would result in more than 20 Eurodollar Borrowings outstanding hereunder at any time. For in respect of the Initial Term Loans may not be reborrowed. purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings. (a) Subject to the terms and conditions set forth herein, and relying upon the representations and warranties set forth herein, each Lender having an Initial Revolving Credit (b) Each Lender shall make each Loan to be made by it hereunder on the Initial Funding Commitment agrees, severally and not jointly, to make Revolving Credit Loans denominated in Date, the Delayed Draw Funding Date or the proposed date of Borrowing thereof, as applicable, Dollars to the Borrower from time to time, on any Business Day during the period from and or by wire transfer of immediately available funds in Dollars, as the case may be, to such account including the Initial Funding Date until the Initial Revolving Credit Commitment Maturity Date, in New York City as the Administrative Agent may designate in advance, not later than 2:00 p.m., in an aggregate outstanding amount not to exceed at any time the amount of the Initial Revolving New York City time (or 9:30 a.m. New York City time in the case of the Initial Funding Date or Credit Commitment; provided that on or prior to the Closing Date the aggregate Outstanding the Delayed Draw Funding Date), and the Administrative Agent shall promptly wire transfer the Amount of Revolving Credit Loans shall not exceed the Closing Date Revolving Available amounts so received in accordance with instructions received from the Borrower in the applicable Amount; provided, further, that after giving effect to any Revolving Credit Borrowing (and the Borrowing Request or, if a Borrowing shall not occur on such date because any condition precedent application of proceeds thereof pursuant to Section 2.11(a)(iv)), the aggregate Outstanding herein specified shall not have been met, return the amounts so received to the respective Lenders. (c) Unless the Administrative Agent shall have received notice from a Lender prior to (the Revolving Credit Loans made pursuant to this Section 2.01(b) Initial Revolving the date of any Borrowing that such Lender will not make available to the Administrative Agent Credit Loans that such Lender Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow, has made such portion available to the Administrative Agent on the date of such Borrowing in prepay and reborrow Revolving Credit Loans. Revolving Credit Loans may be ABR Loans or accordance with this Section 2.02(c) and the Administrative Agent may, in reliance upon such Eurodollar Loans as further provided herein. assumption, make available to the Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available then, to the extent that such Lender shall (b) Subject to the terms and conditions set forth in any Incremental Loan Assumption not have made such portion available to the Administrative Agent, such Lender and the Borrower Agreement, Refinancing Amendment or Extension Amendment, as applicable, each Lender severally agree to repay to the Administrative Agent forthwith on demand such corresponding having an Incremental Loan Commitment, Refinancing Commitment or extending its Original amount together with interest thereon, for each day from the date such amount is made available Term Loans or Original Revolving Credit Commitments, as the case may be, severally and not to the Borrower to but excluding the date such amount is repaid to the Administrative Agent at jointly, hereby agrees, subject to the terms and conditions and relying upon the representations and (i) in the case of the Borrower, a rate per annum equal to the interest rate applicable at the time to warranties set forth in the applicable Incremental Loan Assumption Agreement, Refinancing the Loans comprising such Borrowing and (ii) in the case of such Lender, a rate determined by the Amendment or Extension Amendment, to make Incremental Loans, Refinancing Loans or Administrative Agent to represent its cost of overnight or short-term funds (which determination Extended Term Loans or Extended Revolving Credit Commitments, as applicable, to the shall be conclusive absent manifest error). If such Lender shall repay to the Administrative Agent Borrower, in an aggregate principal amount not to exceed, as applicable, its Incremental Loan Commitment, Refinancing Commitment, Original Revolving Credit Commitments or aggregate Borrowing for purposes of this Agreement. principal amount of Original Term Loans, as applicable. 00 00 00000000_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
SECTION 2.03 Borrowing Procedure. In order to request a Term Loan Borrowing (c) In addition to the accounts and records referred to in Section 2.04(a) and (b), each or a Revolving Credit Borrowing, the Borrower shall notify the Administrative Agent of such Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts request by telephone not later than 12:00 p.m., New York time, (a) one Business Day before a or records and, in the case of the Administrative Agent, entries in the Register, evidencing the proposed Borrowing of Eurodollar Loans on the Initial Funding Date or the Delayed Draw Funding purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. Date and (b) three Business Days before a proposed Borrowing of Eurodollar Loans on any other In the event of any conflict between the accounts and records maintained by the Administrative date (or, in each case, such shorter period as may be agreed by the Administrative Agent) and no Agent and the accounts and records of any Lender in respect of such matters, the Register shall later than 12:00 p.m., New York time, on the Business Day before the date of a proposed control in the absence of manifest error. Borrowing in the case of a Borrowing of ABR Loans. Each such telephonic Borrowing Request shall be irrevocable, and shall be confirmed promptly by hand delivery, e-mail or fax to the (d) The entries made in the Register maintained pursuant to Section 2.04(b) and (c) Administrative Agent of a written Borrowing Request and shall specify the following information: shall be prima facie evidence of the existence and amounts of the obligations therein recorded; (i) whether the Borrowing then being requested is to be a Borrowing of Term Loans, Revolving provided, however, that the failure of any Lender or the Administrative Agent to maintain such Credit Loans, Incremental Term Loans or Incremental Revolving Credit Loans; (ii) the date of accounts or any error therein shall not in any manner affect the obligations of the applicable such Borrowing (which shall be a Business Day); (iii) the number and location of the account to Borrower to repay the Loans in accordance with their terms. which funds are to be disbursed; (iv) the amount of such Borrowing (stated in the Available Currency); and (v) whether the Loans being made pursuant to such Borrowings are to be initially (e) Any Lender may request that Loans made by it hereunder be evidenced by a maintained as ABR Loans or Eurodollar Loans and, if Eurodollar Loans, the Interest Period with promissory note. In such event, the Borrowers shall execute and deliver to such Lender a respect thereto (provided that, the Borrower shall not be permitted to request a Eurodollar promissory note payable to such Lender and its registered assigns and in the form attached hereto Borrowing with an Interest Period in excess of one month until the earlier of (x) the date the as Exhibit G. Notwithstanding any other provision of this Agreement, in the event any Lender Administrative Agent shall have notified the Borrower that the primary syndication of the Loans shall request and receive such a promissory note, the interests represented by such note shall at all has been completed (which notice shall be given as promptly as practicable) and (y) the date that times thereafter (including after any assignment of all or part of such interests pursuant to Section is 30 days after the Closing Date); provided, however, that the initial Interest Period of any 9.04) be represented by one or more promissory notes payable to the payee named therein or its Eurodollar Borrowing made on the Initial Funding Date or the Delayed Draw Funding Date shall registered assigns. end on a date reasonably satisfactory to the Administrative Agent specified by the Borrower in such Borrowing Request; provided, however, that, notwithstanding any contrary specification in SECTION 2.05 Fees. (a) Each Borrower agrees to pay (i) to the Administrative any Borrowing Request, each requested Borrowing shall comply with the requirements set forth Agent, for its own account, the administrative fees as are separately agreed by the Administrative in Section 2.02. If no Interest Period with respect to any Eurodollar Borrowing is specified in any Agent in accordance with the Agent Fee Letter and (ii) all fees required to be paid on the Closing Date pursuant to the Arranger Fee Letter in accordance with the Arranger Fee Letter. duration. The Administrative Agent shall promptly advise the applicable Lenders of any notice (a) Each Borrower agrees to pay to the Administrative Agent for the account of each given pursuant to this Section 2.03 Revolving Credit Lender under each Class of Revolving Credit Commitments in accordance with requested Borrowing. its Pro Rata Share, a commitment fee equal to the Applicable Revolving Commitment Fee SECTION 2.04 Evidence of Debt; Repayment of Loans. Each Borrower hereby Percentage times the actual daily amount by which the aggregate Revolving Credit Commitment unconditionally promises to pay to the Administrative Agent for the account of each Lender the for the applicable Class of Revolving Credit Commitments exceeds the sum of (i) the Outstanding principal amount of each Loan of such Lender as provided in Section 2.11. Amount of Revolving Credit Loans for such Class of Revolving Credit Commitments and (ii) the Outstanding Amount of L/C Obligations for such Class of Revolving Credit Commitments; (a) Each Lender shall maintain in accordance with its usual practice an account or provided that any commitment fee accrued with respect to any of the Commitments of a Defaulting accounts evidencing the indebtedness of such Borrower to such Lender resulting from each Loan Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at made by such Lender from time to time, including the amounts of principal and interest payable such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender and paid to such Lender from time to time under this Agreement. except to the extent that such commitment fee shall otherwise have been due and payable by the Borrower prior to such time; and provided, further, that no commitment fee shall accrue on any of (b) The Administrative Agent shall maintain the Register in which it will record (i) the the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. amount of each Loan made hereunder, the Class and Type thereof and, if applicable, the Interest The commitment fee on each Class of Revolving Credit Commitments shall accrue at all times Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become from the Closing Date until the Maturity Date for such Class of Revolving Credit Commitments, due and payable from the applicable Borrower to each Lender hereunder and (iii) the amount of including at any time during which one or more of the conditions in Article IV is not met, and shall any sum received by the Administrative Agent hereunder from the Borrower or any Guarantor and be due and payable in arrears on the 15th day of each of April, July, October and January, commencing with the first such date during the first full fiscal quarter to occur after the Closing 60 61 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Specified Discount Prepayment Response given pursuant to subsection (B) above; of the Discount Range Prepayment Offer to be submitted by a responding Term Lender provided that, if the aggregate principal amount of Term Loans accepted for to the Auction Manager (or its delegate) by no later than 5:00 p.m., New York City time, prepayment by all Discount Prepayment Accepting Term Lenders exceeds the on the third Business Day after the date of delivery of such notice to such Term Lenders Specified Discount Prepayment Amount, such prepayment shall be made pro rata (which date may be extended for a period not exceeding three (3) Business Days upon among the Discount Prepayment Accepting Term Lenders in accordance with the Discount respective principal amounts accepted to be prepaid by each such Discount Range Prepayment Response Date Discount Range Prepayment Accepting Term Lender and the Auction Manager (in consultation with Prepayment Offer shall be irrevocable and shall specify a discount to par within the the Borrower and subject to rounding requirements of the Auction Manager made Submitted Discount Specified Discount allow prepayment of any or all of its then outstanding Term Loans of the applicable Proration Class or Classes and the maximum aggregate principal amount and Classes of such Term (3) Business Days following the Specified Discount Prepayment Response Date, Submitted Amount notify (1) prepaid at the Submitted Discount. Any Term Lender whose Discount Range the Discounted Prepayment Effective Date and the aggregate principal amount of Prepayment Offer is not received by the Auction Manager by the Discount Range the Discounted Term Loan Prepayment and the Classes to be prepaid, (2) each Prepayment Response Date shall be deemed to have declined to accept a Discounted Term Lender of the Discounted Prepayment Effective Date, and the aggregate Term Loan Prepayment of any of its Term Loans at any discount to their par value within principal amount and the Classes of Term Loans to be prepaid at the Specified the Discount Range. Discount on such date and (3) each Discount Prepayment Accepting Term Lender of the Specified Discount Proration, if any, and confirmation of the principal (A) The Auction Manager shall review all Discount Range Prepayment amount, Class and Type of Term Loans of such Term Lender to be prepaid at the Offers received on or before the applicable Discount Range Prepayment Response Specified Discount on such date. Each determination by the Auction Manager of Date and shall determine (in consultation with the Borrower and subject to rounding the amounts stated in the foregoing notices to the Borrower and such Term Lenders requirements of the Auction Manager made in its sole reasonable discretion) the shall be conclusive and binding for all purposes absent manifest error. The payment Applicable Discount and Term Loans to be prepaid at such Applicable Discount in amount specified in such notice to the Borrower shall be due and payable by the accordance with this subsection (B). The Borrower agrees to accept on the Borrower on the Discounted Prepayment Effective Date in accordance with Discount Range Prepayment Response Date all Discount Range Prepayment Offers subsection (iv) below (subject to subsection (x) below). received by the Auction Manager within the Discount Range by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the (iii) (A) The Borrower may from time to time solicit Discount Range largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par notice in the form of a Discount Range Prepayment Notice; provided that (1) any such within the Discount Range (such Submitted Discount that is the smallest discount solicitation shall be extended, at the sole discretion of the Borrower, to (x) each Term Applicable Discount Lender and/or (y) each Term Lender with respect to any Class of Term Loans on an which yields a Discounted Term Loan Prepayment in an aggregate principal individual Class basis, (2) any such notice shall specify the maximum aggregate amount equal to the lower of (1) the Discount Range Prepayment Amount and (2) Discount Range Prepayment the sum of all Submitted Amounts. Each Term Lender that has submitted a Amount Discount Range Prepayment Offer to accept prepayment at a discount to par that is Discount Range larger than or equal to the Applicable Discount shall be deemed to have irrevocably amount of such Term Loans with respect to each relevant Class of Term Loans willing consented to prepayment of Term Loans equal to its Submitted Amount (subject to to be prepaid by the Borrower (it being understood that different Discount Ranges and/or any required proration pursuant to the following subsection (C)(3)) at the Discount Range Prepayment Amounts may be offered with respect to different Classes Participating Term Lender of Term Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section 2.12(c)(iii)), (3) the Discount Range Prepayment (B) If there is at least one Participating Term Lender, the Borrower will Amount shall be in an aggregate amount not less than $10,000,000 and whole prepay the respective outstanding Term Loans of each Participating Term Lender increments of $1,000,000 in excess thereof (or in such lower minimum amounts or on the Discounted Prepayment Effective Date in the aggregate principal amount multiples as agreed to by the Administrative Agent in its reasonable discretion) and (4) each such solicitation by the Borrower shall remain outstanding through the Discount Offer at the Applicable Discount; provided that if the Submitted Amount by all Range Prepayment Response Date. The Auction Manager will promptly provide each Participating Term Lenders offered at a discount to par greater than the Applicable Appropriate Lender with a copy of such Discount Range Prepayment Notice and a form Discount exceeds the Discount Range Prepayment Amount, prepayment of the 70 71 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
Acceptable Discount shall be deemed to have irrevocably consented to prepayment Prepayment Effective Date and all such prepayments shall be applied to the remaining of Term Loans equal to its Offered Amount (subject to any required pro-rata scheduled installments of principal of the relevant Class of Term Loans pursuant to reduction pursuant to the following sentence) at the Acceptable Discount (each such Section 2.11 on a pro rata basis across the installments applicable to the Class of Term Qualifying Term Lender rrower will prepay Loans so prepaid. The Term Loans so prepaid shall be, as set forth in this Section outstanding Term Loans pursuant to this subsection (iv) to each Qualifying Term 2.12(c), accompanied by all accrued and unpaid interest on the par principal amount so Lender in the aggregate principal amount and of the Classes specified in such Term prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Term Loans pursuant to this Section 2.12(c) shall be paid provided that if the aggregate Offered Amount by all Qualifying Term Lenders to the Discount Prepayment Accepting Lenders, Participating Term Lenders, or whose Offered Discount is greater than or equal to the Acceptable Discount exceeds Qualifying Term Lenders, as applicable, and shall be applied to the relevant Borrowings the Solicited Discounted Prepayment Amount, prepayment of the principal amount of Term Loans of the applicable Class of such Term Lenders ratably. The aggregate of the Term Loans for those Qualifying Term Lenders whose Offered Discount is principal amount of the Classes and installments of the relevant Term Loans outstanding Identified Qualifying Term shall be deemed reduced by the full par value of the aggregate principal amount of the Lenders de pro rata among the Identified Qualifying Term Lenders Classes of Term Loans prepaid on the Discounted Prepayment Effective Date in any in accordance with the Offered Amount of each such Identified Qualifying Term Discounted Term Loan Prepayment. Lender and the Auction Manager (in consultation with the Borrower and subject to rounding requirements of the Auction Manager made in its sole reasonable (vii) To the extent not expressly provided for herein, each Discounted Term Solicited Discount Proration Loan Prepayment shall be consummated pursuant to procedures consistent with the or prior to the Discounted Prepayment Determination Date, the Auction Manager provisions in this Section 2.12(c), established by the Auction Manager acting in its shall promptly notify (1) the Borrower of the Discounted Prepayment Effective reasonable discretion and as reasonably agreed by the Borrower. Date and Acceptable Prepayment Amount comprising the Discounted Term Loan Prepayment and the Classes to be prepaid, (2) each Term Lender of the Discounted (viii) Notwithstanding anything in any Loan Document to the contrary, for Prepayment Effective Date, the Acceptable Discount, and the Acceptable purposes of this Section 2.12(c), each notice or other communication required to be Prepayment Amount of all Term Loans and the Classes to be prepaid at the delivered or otherwise provided to the Auction Manager (or its delegate) shall be Applicable Discount on such date, (3) each Qualifying Term Lender of the aggregate principal amount and the Classes of such Term Lender to be prepaid at during normal business hours of such notice or communication; provided that any notice the Acceptable Discount on such date, and (4) if applicable, each Identified or communication actually received outside of normal business hours shall be deemed Qualifying Term Lender of the Solicited Discount Proration. Each determination to have been given as of the opening of business on the next Business Day. by the Auction Manager of the amounts stated in the foregoing notices to the Borrower and Term Lenders shall be conclusive and binding for all purposes absent (ix) Each of the Group Members and the Term Lenders acknowledge and manifest error. The payment amount specified in such notice to the Borrower shall agree that the Auction Manager may perform any and all of its duties under this Section be due and payable by the Borrower on the Discounted Prepayment Effective Date 2.12(c) by itself or through any Affiliate of the Auction Manager and expressly consents in accordance with subsection (vi) below (subject to subsection (x) below). to any such delegation of duties by the Auction Manager to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions (v) In connection with any Discounted Term Loan Prepayment, the Group pursuant to this Agreement shall apply to each Affiliate of the Auction Manager and its Members and the Term Lenders acknowledge and agree that the Auction Manager may respective activities in connection with any Discounted Term Loan Prepayment require as a condition to any Discounted Term Loan Prepayment, the payment of provided for in this Section 2.12(c) as well as activities of the Auction Manager. customary and documented fees and out-of-pocket expenses from the Borrower in connection therewith. (x) The Borrower shall have the right, by written notice to the Auction Manager, to revoke or modify its offer to make a Discounted Term Loan Prepayment (vi) If any Term Loan is prepaid in accordance with paragraphs (ii) through and rescind the applicable Specified Discount Prepayment Notice, Discount Range (iv) above, the Borrower shall prepay such Term Loans on the Discounted Prepayment Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion Effective Date without premium or penalty, except as set forth in Section 2.12(d). The at any time on or prior to the applicable Specified Discount Prepayment Response Date Borrower shall make such prepayment to the Administrative Agent, for the account of (and if such offer is revoked pursuant to the preceding clauses, any failure by the the Discount Prepayment Accepting Lenders, Participating Term Lenders, or Qualifying Borrower to make any prepayment to a Term Lender, as applicable, pursuant to this Section 2.12(c) shall not constitute a Default or Event of Default under Section 7.01 of available funds not later than 1:00 p.m., New York City time, on the Discounted this Agreement or otherwise). 74 75 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
amount (if any) by which the ECF Payment Amount for such fiscal year exceeds $15.0 million, the Borrower believes in good faith that repatriation of such amount would have material adverse (y) the ECF Percentage for any fiscal year with respect to which Excess Cash Flow is measured tax consequences; provided that if repatriation of any affected portion of the Excess Proceeds or shall be reduced to (i) 25% if the Consolidated Net Leverage Ratio as of the last day of such fiscal Excess Cash Flow would no longer have material adverse tax consequences, as determined by the year is less than or equal to 4.50 to 1.00. and greater than 3.75 to 1.00 (and if an amount of such Borrower in good faith, the Borrower shall promptly (and in any event within five Business Days) prepayment would result in the Consolidated Net Leverage Ratio being reduced to equal to or less prepay the Loans in an amount equal to any such portion no longer affected. than 3.75 to 1.00, with respect to the remaining ECF Payment Amount, with the ECF Percentage being calculated after giving effect to such prepayment) and (ii) to zero if the Consolidated Net (d) In the event and on such occasion that (i) the Revolving Credit Exposure of any Leverage Ratio as of the last day of such fiscal year is less than or equal to 3.75 to 1.00 (and if an Class exceeds the aggregate amount of the Revolving Credit Commitments of such Class or (ii) the amount of such prepayment would result in the Consolidated Net Leverage Ratio being reduced Revolving Credit Exposure under Participating Revolving Credit Commitments exceeds the to equal to or less than 3.75 to 1.00, with respect to the remaining ECF Payment Amount, with the Participating Revolving Credit Commitments, the Borrower shall promptly (and in any event ECF Percentage being calculated after giving effect to such prepayment).. Notwithstanding within five Business Days) prepay (or in the case of L/C Exposure, cash collateralize) the anything to the contrary contained in this Agreement, when calculating the Consolidated Net Revolving Credit Loans, L/C Exposure and/or Swing Line Loans in an aggregate amount equal to Leverage Ratio for the purposes of this Section 2.13(b), Specified Indebtedness shall be such excess (it being understood that the Borrower shall prepay Revolving Loans and/or Swing determined after giving pro forma effect to any voluntary prepayments made pursuant to Section Line Loans prior to cash collateralization of L/C Exposure). 2.12 and any voluntary prepayments of Pari Passu Indebtedness, in each case, after the end of the (e) Mandatory prepayments of outstanding Loans under this Agreement pursuant to assuming such payments had been made on the last day of such fiscal year. For purposes of this Section 2.13(a) and (b) shall be allocated to any Class of Term Loans outstanding as directed by Section 2.13(b), any voluntary prepayments of Loans or other Pari Passu Indebtedness shall the Borrower, shall be applied pro rata to Term Lenders within such Class of Term Loans, based include purchases of Loans or other Pari Passu Indebtedness by the Borrower or any Restricted upon the outstanding principal amounts owing to each such Term Lender under such Class of Term Subsidiary at or below par, in accordance with Section 2.12(c) in the case of the Term Loans, or Loans, and shall be applied against the remaining scheduled installments of principal due in respect any equivalent provision in the documentation governing such other Pari Passu Indebtedness, in of such Class of Term Loans as directed by the Borrower (and in the absence of such direction, in which case the amount of voluntary prepayments of Loans or other Pari Passu Indebtedness shall direct order of maturity); provided that, unless otherwise permitted under this Agreement, such be deemed not to exceed the actual purchase price of such Loans or other Pari Passu Indebtedness prepayments may not be directed to a later maturing Class of Term Loans without at least a pro below par. rata repayment of any earlier maturing Classes of Term Loans (except that any Class of Incremental Term Loans, Extended Term Loans or Refinancing Term Loans may specify that one (c) Notwithstanding anything to the contrary in this Agreement, for purposes of this or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier Section 2.13, (i) to the extent that any or all of the Excess Proceeds or Excess Cash Flow realized maturing Term Loans). by a direct or indirect Subsidiary of the Borrower that is not a U.S. Person are prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Excess (f) The Borrower shall deliver to the Administrative Agent, at the time of each Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans prepayment required under this Section 2.13 (other than Section 2.13(d)), (i) a certificate signed at the times provided in this Section 2.13(a) or (b), as applicable, but may be retained by the by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the applicable Subsidiary so long, but only so long, as the applicable local law will not permit amount of such prepayment and (ii) to the extent practicable (except in respect of prepayments repatriation to the United States (the Borrower hereby agreeing to cause the applicable Subsidiary required under Section 2.13(a)), at least three Business Days prior written notice of such to promptly take all actions reasonably required by the applicable local law to permit such prepayment. Any such notice of prepayment may state that such notice is conditioned upon the repatriation), and once such repatriation of any of such affected Excess Proceeds or Excess Cash occurrence or non-occurrence of any event specified therein (including the effectiveness of other Flow is permitted under the applicable local law, an amount equal to such Excess Proceeds or credit facilities), in which case such notice may be revoked by the Borrower or the Borrower may Excess Cash Flow permitted to be repatriated will be promptly (and in any event no later than two delay the date of prepayment identified therein (by written notice to the Administrative Agent, on (2) Business Days after any such repatriation) applied (net of additional taxes that are or would be or prior to the specified effective date) if such condition is not satisfied or the satisfaction of such payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to condition is delayed. Each notice of prepayment shall specify the prepayment date, the Type of this Section 2.13 to the extent otherwise provided herein or (ii) to the extent that the Borrower each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. determines in good faith that repatriation of an amount equal to any or all of the Excess Proceeds All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall or Excess Cash Flow by such Subsidiary that is not a U.S. person would have material adverse tax otherwise be without premium or penalty, and shall be accompanied by accrued and unpaid interest consequences with respect to such Excess Proceeds or Excess Cash Flow, the Excess Proceeds or on the principal amount to be prepaid to but excluding the date of payment. Excess Cash Flow so affected shall not be required to be applied to repay Loans at the times provided in accordance with Sections 2.13(a) or (b), as applicable, and may be deducted from any (g) The Administrative Agent shall promptly notify each Lender of the contents of any amounts otherwise due under Sections 2.13(a) or (b), as applicable, so long, but only so long, as prepayment notices delivered to the Administrative Agent pursuant to clause (a) of this Section 78 79 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
not be requir 8ECI, IRS Form W-8BEN or W-BEN-E, a U.S. Tax Compliance Certificate would subject such Lender to any material unreimbursed cost or expense or would materially substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, prejudice the legal or commercial position of such Lender, (it being understood that the and/or other certification documents from each beneficial owner, as completion, execution and submission of any documentation no more burdensome than that applicable; provided that if the Foreign Lender is a partnership and one or required for U.S. federal income tax withholding will not give rise to an exception from the more direct or indirect partners of such Foreign Lender are claiming the preceding sentence or otherwise be considered prejudicial to the position of a Lender). portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf (i) Without limiting the generality of the foregoing, of each such direct and indirect partner; (A) any Lender that is a U.S. Person shall deliver to the Borrower and (C) any Foreign Lender shall, to the extent it is legally entitled to do so, the Administrative Agent on or prior to the date on which such Lender becomes a deliver to the Borrower and the Administrative Agent (in such number of copies as Lender under this Agreement (and from time to time thereafter upon the reasonable shall be requested by the recipient) on or prior to the date on which such Foreign request of the Borrower or the Administrative Agent), executed copies of IRS Form Lender becomes a Lender under this Agreement (and from time to time thereafter W-9 certifying that such Lender is exempt from U.S. federal backup withholding upon the reasonable request of the Borrower or the Administrative Agent), executed tax; copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, (B) any Foreign Lender shall, to the extent it is legally entitled to do so, together with such supplementary documentation as may be prescribed by deliver to the Borrower and the Administrative Agent (in such number of copies as applicable law to permit the Borrower or the Administrative Agent to determine the shall be requested by the recipient) on or prior to the date on which such Foreign withholding or deduction required to be made. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), (D) Each Lender agrees that if any form or certification it previously whichever of the following is applicable: delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification, provide any necessary successor form, or promptly (1) in the case of a Foreign Lender claiming the benefits of an notify the Borrower and the Administrative Agent in writing of its legal inability to income tax treaty to which the United States is a party (x) with respect to do so. payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction (e) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the tax treaty and (y) with respect to any other applicable payments under any applicable reporting requirements of FATCA (including those contained in Section 1471(b) or Loan Documents, IRS Form W-8BEN or W-8BEN-E establishing an 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the exemption from, or reduction of, U.S. federal withholding Tax pursuant to Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such (2) executed copies of IRS Form W-8ECI; additional documentation reasonably requested by the Borrower or the Administrative Agent, as may be necessary for the Borrower and the Administrative Agent to comply with their obligations (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a under FATCA or to determine the amount to deduct and withhold from such payment. Solely for certificate substantially in the form of Exhibit H-1 to the effect that such purposes of this clause (f) date of this Agreement. of Section 881(c)(3)(B) of the Code, (f) On or before the date the Administrative Agent becomes a party to this Agreement, U.S. Tax Compliance the Administrative Agent shall provide to the Borrower, two duly signed, properly completed Certificate -8BEN or W-8BEN- copies of the documentation prescribed in clause (i) or (ii) below, as applicable (together with all E; or required attachments thereto): (i) IRS Form W-9 or any successor thereto, or (ii) (A) IRS Form W-8ECI or any successor thereto, and (B) with respect to payments received on account of any (4) to the extent a Foreign Lender is not the beneficial owner, Lender, a U.S. branch withholding certificate on IRS Form W-8IMY or any successor thereto executed copies of IRS Form W-8IMY, accompanied by IRS Form W- 86 87 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
pro rata basis as compared to any earlier maturing Class of Term Loans) in any Closing Date all Swing Line Loans and Letters of Credit shall be participated on a mandatory prepayments of Term Loans and (2) may participate on a pro rata basis, pro rata basis by all Participating Revolving Credit Lenders in accordance with less than pro rata basis or greater than pro rata basis in any voluntary prepayment their percentage of the Participating Revolving Credit Commitments existing after of Term Loans, giving effect to such Refinancing Amendment, provided, such election may be made conditional upon the termination of one or more other Participating (F) shall not have a greater principal amount than the principal amount Revolving Credit Commitments, of the Refinanced Debt plus accrued but unpaid interest, fees, premiums (if any) and penalties thereon and reasonable fees, expenses, OID and upfront fees (E) may provide that the permanent repayment of Revolving Credit associated with the refinancing, and Loans with respect to, and termination or reduction of, Refinancing Revolving Credit Commitments after the associated Refinancing Facility Closing Date be (G) shall rank pari passu in right of payment and security (but without made on a pro rata basis, less than pro rata basis or greater than pro rata basis with regard to the control of remedies) with the other Obligations under this Agreement, all other Revolving Credit Commitments, shall not at any time be guaranteed by any Subsidiary of the Borrower other than Subsidiaries that are Guarantors, and the obligations in respect thereof shall not be (F) shall provide that assignments and participations of Refinancing secured by any property or assets of the Borrower or any Restricted Subsidiary Revolving Credit Commitments and Refinancing Revolving Loans shall be other than the Collateral; and governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans then existing on the (ii) the Refinancing Revolving Credit Commitments and Refinancing Refinancing Facility Closing Date, Revolving Loans: (G) shall have an interest rate (which may be fixed or variable), margin (A) shall rank pari passu in right of payment and security (but without (if any) and interest rate floor (if any), determined by the Borrower and the regard to the control of remedies) with the other Obligations under this Agreement, applicable Refinancing Revolving Credit Lenders, shall not at any time be guaranteed by any Subsidiary of the Borrower other than Subsidiaries that are Guarantors, and the obligations in respect thereof shall not be (H) shall have fees determined by the Borrower and the applicable secured by any property or assets of the Borrower or any Restricted Subsidiary Refinancing Arrangers, and other than the Collateral, (I) shall not have a greater principal amount of Commitments than the (B) shall not have a final scheduled maturity date or commitment principal amount of the Commitments of the Refinanced Debt plus accrued but reduction date earlier than the Maturity Date or commitment reduction date, unpaid interest, fees, premiums (if any) and penalties thereon and reasonable fees, respectively, with respect to the Refinanced Debt and shall not have any scheduled expenses, OID and upfront fees associated with the refinancing. amortization or mandatory Commitment reductions prior to the maturity date of the Refinanced Debt, (e) Refinancing Amendment. Commitments in respect of Refinancing Term Loans and Refinancing Revolving Credit Commitments shall become additional Commitments pursuant to (C) shall provide that the borrowing and repayment (except for (1) Refinancing Amendment payments of interest and fees at different rates on Refinancing Revolving Credit Loan Documents, executed by the Borrower, each Refinancing Lender providing such Commitments (and related outstandings), (2) repayments required upon the Commitments, and the Refinancing Arranger. The Refinancing Amendment may, without the Maturity Date of the Refinancing Revolving Credit Commitments and consent of other Loan Party, Agent or Lender, (i) effect such amendments to this Agreement and (3) repayment made in connection with a permanent repayment and termination of the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the commitments (subject to clause (E) below)) of Loans with respect to Refinancing Refinancing Arranger and the Borrower, to effect the provisions of this Section 2.24, including Revolving Credit Commitments after the associated Refinancing Facility Closing amendments as deemed necessary by the Refinancing Arranger in consultation with the Date shall be made on a pro rata basis or less than a pro rata basis (but not more Administrative Agent in its reasonable judgment to address technical issues relating to funding than a pro rata basis) with all other Revolving Credit Commitments then existing and payments, including adjusting Interest Periods and other provisions to allow such Refinancing on the Refinancing Facility Closing Date, Loans to be part of an Existing Class of Loans and (ii) at the option of the Borrower in consultation with the applicable Refinancing Arranger, incorporate terms that would be favorable to existing (D) may be elected to be included as additional Participating Revolving Lenders of the applicable Class or Classes for the benefit of such existing Lenders of the applicable Credit Commitments under the Refinancing Amendment, subject to the consent of Class or Classes, in each case under this clause (ii), so long as the applicable Refinancing Arranger each Swing Line Lender and each L/C Issuer, and on the Refinancing Facility reasonably agrees that such modification is favorable to the applicable Lenders. The Borrower 100 101 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
copy thereof. Upon receipt by the relevant L/C Issuer of confirmation from the made on the date of drawing, the Borrower shall pay interest to the relevant L/C Issuer on such Administrative Agent that the requested issuance or amendment is permitted in amount at the rate applicable to ABR Loans under the applicable Participating Revolving Credit accordance with the terms hereof, then, subject to the terms and conditions hereof, such Commitments (without duplication of interest payable on L/C Borrowings). The L/C Issuer shall L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the notify the Borrower of the amount of the drawing promptly following the determination or Borrower (and, if applicable, its applicable Subsidiary) or enter into the applicable revaluation thereof. If the Borrower fails to so reimburse such L/C Issuer by such time, the amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, Administrative Agent shall promptly notify each Appropriate Lender of the Honor Date, the each Participating Revolving Credit Lender shall be deemed to, and hereby irrevocably Unreimbursed Amount and unconditionally agrees to, purchase from the relevant L/C Issuer a risk participation nder this Agreement thereof. In such event, the Borrower shall be deemed to have requested a Revolving Credit Share times the stated amount of such Letter of Credit. Borrowing of ABR Loans under the Participating Revolving Credit Commitments to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the (ii) If the Borrower so requests in any applicable Letter of Credit minimum and multiples specified in Section 2.02 for the principal amount of ABR Loans or Application, the relevant L/C Issuer shall agree to issue a Letter of Credit that has Eurodollar Loans, as the case may be, but subject to the amount of the unutilized portion of the Auto-Extension Letter of Credit ided Participating Revolving Credit Commitments of the Appropriate Lenders and the conditions set that any such Auto-Extension Letter of Credit must permit the relevant L/C Issuer to forth in Section 4.03 (other than the delivery of a Borrowing Request). Any notice given by an prevent any such extension at least once in each twelve (12) month period (commencing L/C Issuer or the Administrative Agent pursuant to this Section 2.26(c)(i) may be given by with the date of issuance of such Letter of Credit) by giving prior notice to the telephone if immediately confirmed in writing; provided that the lack of such an immediate Non-extension Notice Date confirmation shall not affect the conclusiveness or binding effect of such notice. twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the relevant L/C Issuer, the Borrower shall not be required (i) Each Appropriate Lender (including any Lender acting as an L/C Issuer) to make a specific request to the relevant L/C Issuer for any such extension. Once an shall upon any notice pursuant to Section 2.26(c)(i) make funds available to the Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have Administrative Agent for the account of the relevant L/C Issuer in Dollars, at the authorized (but may not require) the relevant L/C Issuer to permit the extension of such Administr Letter of Credit at any time to an expiry date that is, unless the Outstanding Amount of the Unreimbursed Amount not later than 1:00 p.m., New York City time, on the Business L/C Obligations in respect of such requested Letter of Credit has been Cash Day specified in such notice by the Administrative Agent, whereupon, subject to the Collateralized or back-stopped by a letter of credit reasonably satisfactory to the relevant provisions of Section 2.26(c)(iii), each Appropriate Lender that so makes funds L/C Issuer, not later than the Letter of Credit Expiration Date; provided that the relevant available shall be deemed to have made an ABR Loan under the Participating Revolving L/C Issuer shall not permit any such extension if (A) the relevant L/C Issuer has Credit Commitments to the Borrower in such amount. The Administrative Agent shall determined that it would not be permitted at such time to issue such Letter of Credit in remit the funds so received to the relevant L/C Issuer. its extended form under the terms hereof (by reason of the provisions of Section 2.26(a)(ii) or otherwise), or (B) it has received notice on or before the day that is seven (ii) With respect to any Unreimbursed Amount that is not fully refinanced by (7) Business Days before the Non-extension Notice Date from the Administrative a Revolving Credit Borrowing of ABR Loans because the conditions set forth in Section Agent, any Participating Revolving Credit Lender or the Borrower that one or more of 4.03 cannot be satisfied or for any other reason, the Borrower shall be deemed to have the applicable conditions specified in Section 4.03 is not then satisfied. incurred from the relevant L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and (iii) Promptly after issuance of any Letter of Credit or any amendment to a payable on demand (together with interest) and shall bear interest at the rate calculated Letter of Credit, the relevant L/C Issuer will also deliver to the Borrower and the pursuant to Section 2.07 Administrative Agent a true and complete copy of such Letter of Credit or amendment. Administrative Agent for the account of the relevant L/C Issuer pursuant to Section 2.26(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing (c) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from and shall constitute an L/C Advance from such Lender in satisfaction of its participation the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the obligation under this Section 2.26. relevant L/C Issuer shall notify promptly the Borrower and the Administrative Agent thereof. Not later than 12:00 noon, New York City time, on the second Business Day following any payment (iii) Until each Appropriate Lender funds its Revolving Credit Loan or L/C Honor Advance pursuant to this Section 2.26(c) to reimburse the relevant L/C Issuer for any Date amount equal to the amount of such drawing in Dollars provided that if such reimbursement is not Share of such amount shall be solely for the account of the relevant L/C Issuer. 106 107 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
providedΒΈ however, that this representation is made only to the knowledge of the Borrower with SECTION 3.09 Environmental Compliance. (a) No Loan Party or Restricted respect to financial statements of entities that were not Subsidiaries of the Borrower as of the date Subsidiary (i) has failed to comply in all material respects with applicable Environmental Law or of such financial statements. to obtain, maintain or comply with any Environmental Permit, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any material (a) Since December 31, 2018, there has not occurred any Material Adverse Effect or Environmental Liability or (iv) has a Responsible Officer with knowledge of any basis for any any event, condition, change or effect that would reasonably be expected to have, individually or material Environmental Liability, except, in each case, as would not, individually or in the in the aggregate, a Material Adverse Effect. aggregate, reasonably be expected to have a Material Adverse Effect. (b) As of the Initial Funding Date, to the best knowledge of the Borrower, no Internal (a) (i) None of the properties currently or formerly owned or operated by any Loan Control Event exists or has occurred since the date of the Audited Financial Statements that has Party or Restricted Subsidiary is or was listed or, to the knowledge of any Responsible Officer was resulted in or would reasonably be expected to result in a misstatement in any material respect, in proposed for listing on the NPL or on the CERCLIS or any analogous state or local list at any time any financial information contained in the Audited Financial Statements delivered or to be while such property was owned by such Loan Party or, to the knowledge of any Responsible delivered to the Administrative Agent or the Lenders, of the assets, liabilities, financial condition Officer, at any time prior to or after such property was owned by such Loan Party, and, to the or results of operations of the Group Members on a Consolidated basis. knowledge of any Responsible Officer, no property currently owned or operated by any Loan Party or Restricted Subsidiary is adjacent to any such property, in each case in connection with any SECTION 3.06 Litigation. There are no actions, suits, proceedings, claims or matter for which any Loan Party or Restricted Subsidiary would have any material Environmental disputes pending or, to the knowledge of the Loan Parties after due and diligent investigation, Liability; (ii) there are no, or, to the knowledge of any Responsible Officer, never have been any overtly threatened, at law, in equity, in arbitration or before any Governmental Authority, by or underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, against any Loan Party or any of its Subsidiaries or against any of its properties, rights or revenues sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed that (a) purport to materially and adversely affect or pertain to this Agreement or any other Loan on any property currently owned or operated by any Loan Party or Restricted Subsidiary in Document, or any of the transactions contemplated hereby, or (b) either individually or in the violation of any Environmental Laws or, to the knowledge of any Responsible Officer, on any aggregate would reasonably be expected to have a Material Adverse Effect. property formerly owned or operated by any Loan Party or Restricted Subsidiary; (iii) there is no friable asbestos or friable asbestos-containing material on any property currently owned or SECTION 3.07 No Default. No Loan Party or Restricted Subsidiary is in default operated by any Loan Party or Restricted Subsidiary; (iv) Hazardous Materials have not been under or with respect to any Material Indebtedness. No Event of Default has occurred and is Released, discharged or disposed of on any property currently or formerly owned or operated by continuing or would result from the consummation of the transactions contemplated by this any Loan Party or Restricted Subsidiary in violation of any Environmental Laws; and (v) to the Agreement or any other Loan Document. knowledge of any Responsible Officer, there are no pending or threatened Liens under or pursuant to any applicable Environmental Laws on any real property or other assets owned or leased by any SECTION 3.08 Ownership of Properties; Liens; Debt. (a) Each Loan Party and Loan Party or Restricted Subsidiary, and to the knowledge of any Responsible Officer, no actions each Restricted Subsidiary has good and marketable title in fee simple to or valid leasehold by any Governmental Authority have been taken or are in process which would subject any of such interests in, or easements or other limited property interests in, all Real Estate necessary or used properties or assets to such Liens, except, in the case of clauses (i) through (v) above, as would in the ordinary conduct of its business, free and clear of all Liens except for minor defects in title not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Liens permitted by Section 4.06 of Annex I and except as does not (b) No Loan Party or Restricted Subsidiary is undertaking, and no Loan Party or have and would not reasonably be expected to have a Material Adverse Effect. Restricted Subsidiary has completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any (a) There are no Liens on property or assets material to the conduct of the business of actual or threatened Release, discharge or disposal of Hazardous Materials at any site, location or each Loan Party and each Restricted Subsidiary, other than Liens permitted pursuant to Section operation, either voluntarily or pursuant to the order of any Governmental Authority or the 4.06 of Annex I. requirements of any Environmental Law that has or would reasonably be expected to have a (b) As of the Effective Date, Schedule 3.08(c) sets forth a complete and accurate list of Material Adverse Effect; and all Hazardous Materials generated, used, treated, handled or stored all Indebtedness of each Loan Party and its Restricted Subsidiaries, in each case in excess of $25 at, or transported to or from, any property currently or formerly owned or operated by any Loan million, showing the amount, obligor or issuer and maturity thereof and whether such Indebtedness Party or Restricted Subsidiary have been disposed of in a manner not reasonably expected, is secured by a Lien. As of the Closing Date, no Loan Party has incurred any Indebtedness since individually or in the aggregate, to have a Material Adverse Effect. the Effective Date, except as would have been permitted pursuant to Section 4.04 of Annex I or SECTION 3.10 Insurance. The properties of the Loan Parties and the Restricted pursuant to the Existing Target Credit Agreement. Subsidiaries are insured with financially sound and reputable insurance companies (including any 120 121 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
(b) The Administrative Agent shall have received a Request for Credit Extension as in writing, the Borrower and each Guarantor will, and will, to the extent provided below, cause required by Article II. each of the Restricted Subsidiaries to comply with the covenants set forth in Annex I and to: Each Request for Credit Extension (other than a Borrowing Request requesting only a SECTION 5.01 Projections. Deliver to the Administrative Agent (for distribution conversion of Loans to the other Type or a continuation of Eurodollar Loans) submitted by the to each Lender), as soon as available, but in any event no more than 90 days after the end of each Borrower after the Initial Funding Date pursuant to this Section 4.03 shall be deemed to be a fiscal year commencing with the fiscal year during which the Closing Date occurs, forecasts representation and warranty that the conditions specified in Sections 4.03(a) and (b) have been prepared using fiscal periods for any applicable fiscal years (including, if applicable, the fiscal satisfied on and as of the date of the applicable Credit Extension. year in which the Maturity Date occurs) as customarily prepared by management of the Borrower Projections a certificate of a SECTION 4.04 Conditions to the Delayed Draw Term Loans. The obligations of Responsible Officer stating that such Projections have been prepared in good faith on the basis of the Lenders to make any Delayed Draw Term Loans hereunder on the Delayed Draw Funding Date the assumptions stated therein, which assumptions were believed to be reasonable at the time of are subject to the satisfaction of the following conditions: preparation of such Projections, it being understood that actual results may vary from such Projections and that such variations may be material. (a) (i) The Closing Date shall have occurred and (ii) the Existing Facilities Refinancing shall have occurred. SECTION 5.02 Certificates; Other Information. (a) Deliver to the Administrative er, in form and detail satisfactory (b) All fees and expenses (in the case of expenses, to the extent invoiced at least three to the Administrative Agent: Business Day prior to the Delayed Draw Funding Date but excluding any legal fees and expenses (except as otherwise reasonably agreed by the Borrower)) required to be paid to the Commitment (i) promptly after the receipt thereof by the Borrower and its Restricted Parties (as defined in the Commitment Letter) on the Delayed Draw Funding Date shall have been paid. certified public accountants and the (c) The Delayed Draw Funding Date shall be a Business Day on or before the Delayed (ii) promptly after the request by the Administrative Agent or any Lender, Draw Termination Date. all documentation and other information that the Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable (d) A certificate from the chief financial officer (or other Responsible Officer) of the -money laundering rules and regulations, including the Borrower certifying that immediately before and after the making of the Delayed Draw Term USA PATRIOT Act and the Beneficial Ownership Regulation; and Loans no Event of Default shall occur or be continuing under Section 7.01(a) and 7.01(g) of this Agreement, with respect to the Borrower. (iii) promptly, such additional information regarding the business affairs, financial condition or operations of any Loan Party or any Subsidiary, or compliance (e) The Administrative Agent shall have received a Borrowing Request meeting the with the terms of the Loan Documents, as the Administrative Agent or any Lender may requirements of Section 2.03 (without prejudice to the conditions precedent for such Borrowing from time to time reasonably request. set forth in this Section 4.04). (b) Documents required to be delivered pursuant to Section 4.10 of Annex I may be ARTICLE V delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) specified in Section 9.01 with respect to e-mail communications, (ii) on which the Borrower COVENANTS et at the website address listed on Schedule 9.01(a); or (iii) on which such documents are posted on the The Borrower and each Guarantor covenant and agree with each Lender that from and after t website, if any, to which each Lender and the the Closing Date, so long as this Agreement shall remain in effect, and until the Commitments Administrative Agent have access (whether a commercial, third-party website or whether have been terminated and the principal of and interest on each Loan and all fees and all other sponsored by the Administrative Agent); provided, that (x) the Borrower shall notify the expenses or amounts payable under any Loan Document shall have been paid in full (other than Administrative Agent and each Lender (by telecopier or e-mail) of the posting of any such contingent indemnification obligations not then due and payable), or any Letter of Credit shall documents and (y) if for any reason the Administrative Agent is unable to obtain electronic remain outstanding (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized or back-stopped by a letter of credit reasonably satisfactory to the the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such applicable L/C Issuer or such Letter of Credit has been deemed reissued under another agreement documents. The Administrative Agent shall have no obligation to request the delivery or to reasonably acceptable to the L/C Issuer), or unless the Required Lenders shall otherwise consent maintain copies of the documents referred to above, and in any event shall have no responsibility 130 131 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
or conditions set forth in any Loan Document or the occurrence of any Default or Event of Default, selected by it, and shall not be liable for any action taken or not taken by it in accordance with the (D) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other advice of any such counsel, accountants or experts. agreement, instrument or document, (E) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be (f) Each Agent may perform any and all its duties and exercise its rights and powers delivered to such Agent or (F) the perfection or priority of any security interest created or purported hereunder or under any other Loan Document or any other instrument or agreements referred to be created under the Security Documents. The Agents shall have the right to request instructions herein or therein by or through any one or more sub-agents appointed by it provided, however, that from the Required Lenders at any time; which, in the case of the Collateral Agent, shall be solely in the case where an Agent no longer serves as the applicable withholding agent, if a sub- determined by, and communicated by, the Administrative Agent. If any Agent shall request agent has been appointed to serve as withholding agent, any such sub-agent that such Agent may instructions from the Required Lenders with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, such Agent shall be entitled to of Treasury Regulations Section 1.1441-1 or a non-U.S. Affiliate of any such entity that has agreed refrain from such act or taking such action unless and until such Agent shall have received instructions from the Required Lenders; and such Agent shall not incur liability to any Lender by 1.1441-1 for all payments under the Loan Documents (it being understood and agreed, for reason of so refraining. Without limiting the foregoing, no Lender shall have any right of action avoidance of doubt and without limiting the generality of this Section, that the Agent may perform whatsoever against any Agent or any of its Related Parties as a result of such Agent or such other any and all of its duties and exercise its rights and powers hereunder and thereunder, by or through person acting or refraining from acting hereunder or under any other Loan Document in accordance one of more of its Affiliates). Each Agent and any such sub-agent may perform any and all its with the instructions of the Required Lenders. No Agent shall be under any obligation to any duties and exercise its rights and powers by or through their respective Related Parties. The Lender to ascertain or to inquire as to the observance or performance of any of the agreements exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the contained in, or conditions of, this Agreement or any other Loan Documents, or to inspect the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities properties, books or records of any Loan Party. The Collateral Agent shall not be under any in connection with the syndication of the Term Facility as well as activities as Agent. Neither obligation to the Administrative Agent or any Lender to ascertain or to inquire as to the observance Agent shall be responsible for the negligence or misconduct of any sub-agents except to the extent or performance of any of the agreements contained in, or conditions of, this Agreement or any that a court of competent jurisdiction determines in a final and non-appealable judgment that such other Loan Documents, or to inspect the properties, books or records of any Loan Party. Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. Notwithstanding anything else to the contrary herein, whenever reference is made in this Agreement or any other Loan Document to any discretionary action by, consent, designation, (g) Each Agent may resign at any time by notifying the Lenders and the Borrower. specification, requirement or approval of, notice, request or other communication from, or other Upon any such resignation, the Required Lenders shall have the right, with the consent of the direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Borrower (prior to the occurrence of a Specified Event of Default), to appoint a successor Agent Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of (other than a Disqualified Person) who shall satisfy the requirements of the next succeeding satisfaction, reasonable satisfaction or other exercise of discretion, rights or remedies to be made sentence in the case of an Administrative Agent. If no successor shall have been so appointed by (or not to be made) by the Collateral Agent, it is understood that in all cases the Collateral Agent the Required Lenders and shall have accepted such appointment within 60 days after the retiring shall be fully justified in failing or refusing to take any such action under this Agreement if it shall Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint not have received such written instruction, advice or concurrence of the Administrative Agent, as a successor Agent which, in the case of the Administrative Agent, shall be (i) a financial institution it deems appropriate. This provision is intended solely for the benefit of the Collateral Agent and with an office in New York, New York, or an Affiliate of any such financial institution and (ii) a its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto. 1.1441-1 or a non- g -1 for all payments under the (e) Each Agent shall be entitled to rely upon, and shall not incur any liability for relying Loan Documents. If the Person serving as the Administrative Agent is a Defaulting Lender, the upon, any notice, request, certificate, consent, statement, instrument, document or other writing Required Lenders may, to the extent permitted by applicable law, by notice in writing to the (including any electronic message, Internet or intranet website posting or other distribution) Borrower and such Person, remove such Person as the Administrative Agent, and appoint a believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper successor Agent which shall satisfy the requirements in the immediately preceding sentence, with Person. Each Agent may also rely upon any statement made to it orally or by telephone and the consent of the Borrower so long as no Specified Event of Default is continuing. If no successor believed by it to have been made by the proper Person, and shall not incur any liability for relying Agent has been appointed pursuant to the immediately preceding sentence by the 60th day after the thereon. In determining compliance with any condition hereunder to the making of a Loan that by date such notice of resignation or removal was given by such Agent, the Borrower or the Required its terms must be fulfilled to the satisfaction of a Lender, each Agent may presume that such Le condition is satisfactory to such Lender unless such Agent shall have received notice to the from its duties and obligations hereunder) and the Required Lenders shall thereafter perform all contrary from such Lender prior to the making of such Loan. Each Agent may consult with legal the duties of such Agent hereunder and/or under any other Loan Document until such time, if any, counsel (who may be counsel for the Borrower), independent accountants and other experts as the Required Lenders appoint a successor Agent with the consent of the Borrower (prior to the 146 147 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
occurrence of a Specified Event of Default). Upon the acceptance of its appointment as Agent make such payments to such Agent and, in the event that such Agent shall consent to the making hereunder by a successor Agent, such successor Agent shall succeed to and become vested with of such payments directly to the Lenders, to pay to such Agent any amount due for the reasonable all the rights, powers, privileges and duties of the retiring Agent, and the retiring Administrative compensation, expenses, disbursements and advances of such Agent and its agents and counsel, Agent shall be discharged from its duties and obligations hereunder (if not already discharged and any other amounts due such Agent under Section 9.05. therefrom as provided above). The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such (k) To the extent required by any applicable law, the Administrative Agent may removal hereunder, the withhold from any payment to any Lender an amount equivalent to any applicable withholding provisions of this Article VIII and Section 9.05 shall continue in effect for the benefit of the retiring Tax. If any payment has been made to any Lender by the Administrative Agent without the Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted applicable withholding Tax being withheld from such payment and the Administrative Agent has to be taken by any of them while acting as Agent. paid over the applicable withholding Tax to the IRS or any other Governmental Authority, or the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not (h) Each Lender acknowledges that it has, independently and without reliance upon the properly withhold Tax from amounts paid to or for the account of any Lender because the Agents or any other Lender or any of their Related Parties and based on such documents and appropriate form was not delivered or was not properly executed or because such Lender failed to information as it has deemed appropriate, made its own credit analysis and decision to enter into notify the Administrative Agent of a change in circumstance which rendered the exemption from, this Agreement. Each Lender also acknowledges that it will, independently and without reliance or reduction of, withholding Tax ineffective or for any other reason, such Lender shall indemnify upon the Agents or any other Lender or any of their Related Parties and based on such documents the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative and information as it shall from time to time deem appropriate, continue to make its own decisions Agent as Tax or otherwise, including any penalties or interest and together with all expenses in taking or not taking action under or based upon this Agreement, any other Loan Document, any (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred whether related agreement or any document furnished hereunder or thereunder. or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Authority. Each Lender hereby authorizes the Administrative Agent to set off and apply any and (i) Notwithstanding any other provision of this Agreement or any provision of any all amounts at any time owing to such Lender under this Agreement or any other Loan Document other Loan Document, each Lead Arranger is named as such for recognition purposes only, and in against any amount due the Administrative Agent under this Article VIII(k). its respective capacities as such shall have no duties, responsibilities or liabilities with respect to this Agreement or any other Loan Document; it being understood and agreed that the Lead (l) Any Agent shall be fully justified in failing or refusing to take any action hereunder Arrangers shall be entitled to all indemnification and reimbursement rights in favor of the Agents and under any other Loan Document (except actions expressly required to be taken by it hereunder provided herein and in the other Loan Documents. Without limitation of the foregoing, the Lead or under the Loan Documents) unless it shall first be indemnified and secured to its satisfaction Arrangers in their respective capacities as such shall not, by reason of this Agreement or any other (including by way of pre-funding) by the Lenders pro rata against any and all liability, cost and Loan Document, have any fiduciary relationship in respect of any Lender, Loan Party or any other expense that it may incur by reason of taking or continuing to take any such action. Neither Agent Person. shall be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder or under any other Loan Document. (j) In case of the pendency of any proceeding under any Bankruptcy Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether (m) The agreements in this Article VIII shall survive the payment of all Obligations. the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on (n) Except as otherwise expressly set forth herein or in the Facility Guaranty or any the Borrower) shall be entitled and empowered (but not obligated) by intervention in such Security Document, no Hedge Counterparty or Treasury Services Provider that obtains the benefits proceeding or otherwise to instruct the Collateral Agent, in accordance with any Intercreditor of Section 7.02, the Facility Guaranty or any Collateral by virtue of the provisions hereof or of the Agreement, or as otherwise provided thereby (i) to file and prove a claim for the whole amount of Facility Guaranty or any Security Document shall have any right to notice of any action or to the principal and interest owing and unpaid in respect of the Loans and all other Obligations that consent to, direct or object to any action hereunder or under any other Loan Document or otherwise are owing and unpaid and to file such other documents as may be necessary or advisable in order in respect of the Collateral (including the release or impairment of any Collateral) other than, if a to have the claims of the Lenders and the Agents (including any claim for the reasonable Lender at such time, in its capacity as a Lender and, in such case, only to the extent expressly compensation, expenses, disbursements and advances of the Lenders and the Agents and their provided in the Loan Documents. Notwithstanding any other provision of this Article VIII to the respective agents and counsel and all other amounts due the Lenders and Agents under Section contrary, the Administrative Agent shall not be required to verify the payment of, or that other 9.05) allowed in such judicial proceeding and (ii) to collect and receive any monies or other satisfactory arrangements have been made with respect to, Obligations arising under Treasury property payable or deliverable on any such claims and to distribute the same and, in either case, Services Agreements and Swap Contracts unless the Administrative Agent has received written any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any notice of such Obligations, together with such supporting documentation as the Administrative such judicial proceeding is hereby authorized by each Lender and each other Secured Party to Agent may request, from the applicable Hedge Counterparty or Treasury Services Provider. The 148 149 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
public information about the Loan Parties and their Related Parties or their respective securities) (c) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices in New York City a copy of each Assignment compliance procedures and applicable laws, including Federal and state securities laws) and all and Acceptance delivered to it and a register for the recordation of the names and addresses of the applicable tax forms and (vii) no assignment of any Initial Term Loan Commitments (or Initial Lenders, and the Commitments of, and principal amount of the Loans, Swing Line Loans and L/C Term Loans) shall be effective prior to the Delayed Draw Funding Date (unless consented to by Borrowings (and stated interest) owing to, each Lender pursuant to the terms hereof from time to the Borrower). Upon acceptance and recording pursuant to Section 9.04(e), from and after the Register effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be Borrower, the Administrative Agent, the Collateral Agent and the Lenders shall treat each Person a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have whose name is recorded in the Register pursuant to the terms hereof as the owner of the amounts the rights and obligations of a Lender under this Agreement and (B) the assigning Lender owing to it under the Loan Documents as reflected in the Register for all purposes of the Loan thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be Documents, notwithstanding notice to the contrary. The Register shall be available for inspection released from its obligations under this Agreement (and, in the case of an Assignment and by the Borrower, the Collateral Agent, any Lender (solely with respect to any entry relating to such under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled Participating Revolving Credit Commitments) and any Swing Line Lender (solely with respect to to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any fees accrued for its account any entry relating to Participating Revolving Credit Commitments), at any reasonable time and and not yet paid). from time to time upon reasonable prior notice. (b) By executing and delivering an Assignment and Acceptance, the assigning Lender (d) Upon its receipt of, and consent to, a duly completed Assignment and Acceptance thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other executed by an assigning Lender and an assignee, an Administrative Questionnaire completed in and the other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and respect of the assignee (unless the assignee shall already be a Lender hereunder), the processing beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that and recordation fee referred to in Section 9.04(b), if applicable, and the written consent of the its Commitment and the outstanding balances of its Loans, in each case without giving effect to Administrative Agent and, if required, the Borrower to such assignment and any applicable tax assignments thereof which have not become effective, are as set forth in such Assignment and forms, the Administrative Agent shall (i) accept such Assignment and Acceptance and (ii) record Acceptance, (ii) except as set forth in clause (i) above, such assigning Lender makes no the information contained therein in the Register. Notwithstanding anything to the contrary in the representation or warranty and assumes no responsibility with respect to any statements, warranties Agreement to the contrary, no assignment shall be effective unless it has been recorded in the or representations made in or in connection with this Agreement, or the execution, legality, Register as provided in this Section 9.04(e). validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial (e) Each Lender may, without the consent of, or notice to, the Borrower or the condition of the Borrower or any Subsidiary or the performance or observance by the Borrower or Administrative Agent, sell participations to one or more banks or other Persons (other than a any Subsidiary of any of its obligations under this Agreement, any other Loan Document or any Defaulting Lender, provided that the Administrative Agent has posted the name of such Defaulting other instrument or document furnished pursuant hereto; (iii) such assignee represents and -Public warrants that it is an Eligible Assignee legally authorized to enter into such Assignment and portion of its rights and obligations under this Agreement (including all or a portion of its Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together Commitment and the Loans owing to it); provided, however, that (i) no Lender shall, without the with copies of the most recent financial statements referred to in Section 3.05(a) or delivered written consent of the Borrower, sell participations in Loans or Commitments to any Disqualified pursuant to Section 4.10 of Annex I and such other documents and information as it has deemed Person, (ii) (iii) such appropriate to make its own credit analysis and decision to enter into such Assignment and Lender shall remain solely responsible to the other parties hereto for the performance of such Acceptance; (v) such assignee will independently and without reliance upon the Administrative obligations, (iv) the participating banks or other Persons shall be entitled to the benefit of the cost Agent, the Collateral Agent, such assigning Lender or any other Lender and based on such protection provisions contained in Sections 2.14, 2.16 and 2.20 to the same extent as if they were documents and information as it shall deem appropriate at the time, continue to make its own credit Lenders (but, with respect to any particular participant, to no greater extent than the Lender that decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and sold the participation to such participant unless a greater payment results from a Change in Law authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its occurring after such particular participant acquired the applicable participation or the sale of such behalf and to exercise such powers under this Agreement as are delegated to the Administrative participation was approved in writing by the Borrower), (v) the Borrower, the Administrative Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as Agent and the Lenders shall continue to deal solely and directly with such Lender in connection are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be sole right to enforce the obligations of the Borrower relating to the Loans and to approve any performed by it as a Lender. amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications or waivers decreasing any fees payable to such participating bank or Person 156 157 00000000_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
hereunder or the amount of principal of or the rate at which interest is payable on the Loans in liable for any indemnity or similar payment obligation under this Agreement (all liability for which which such participating bank or Person has an interest, extending any scheduled principal shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby payment date or date fixed for the payment of interest on the Loans in which such participating agrees (which agreement shall survive the termination of this Agreement) that, prior to the date bank or Person has an interest, increasing or extending the Commitments in which such that is one year and one day after the payment in full of all outstanding commercial paper or other participating bank or Person has an interest or releasing all or substantially all of the value of the senior indebtedness of any SPV, it will not institute against, or join any other Person in instituting Facility Guaranty or all or substantially all of the Collateral) and (vi) such Lender shall maintain a against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation register on which it records the name and address of each participant and the principal amounts proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.04, any SPV may (i) with notice to, but without Commitments or other interests hereunder, which entries shall be conclusive absent manifest error the prior written consent of, the Borrower and the Administrative Agent and without paying any Participant Register processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender any portion of such register to any Person except to the extent disclosure is necessary to establish or to any financial institutions (consented to by the Borrower and Administrative Agent) providing that the Loans, Commitments or other interests hereunder are in registered form for United States liquidity and/or credit support to or for the account of such SPV to support the funding or federal income tax purposes under Treasury Regulations Section 5f.103-1(c), or is otherwise maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating required thereunder. To the extent permitted by law, each participating bank or other Person also to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or shall be entitled to the benefits of Section 9.06 as though it were a Lender, provided such credit or liquidity enhancement to such SPV. If a Granting Lender grants an option to an SPV as participating bank or other Person agrees to be subject to Section 2.18 as though it were a Lender. described herein and such grant is not reflected in the Register, the Granting Lender shall maintain a separate register on which it records the name and address of each SPV and the principal amounts (f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or participant or SPV Register proposed assignee or participant any information relating to the Borrower furnished to such Lender provided, further, that no Lender shall have any obligation to disclose any portion of such register by or on behalf of the Borrower; provided that, prior to any such disclosure of information to any Person except to the extent disclosure is necessary to establish that the Loans, Commitments designated by the Borrower as confidential, each such assignee or participant or proposed assignee or other interests hereunder are in registered form for United States federal income tax purposes or participant shall execute an agreement with such Lender whereby such assignee or participant under Treasury Regulations Section 5f.103-1(c) or is otherwise required thereunder. shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section (i) Neither the Borrower nor any Guarantor shall assign or delegate any of its rights or 9.16. duties hereunder or any other Loan Document (other than as permitted by Article V of Annex I) without the prior written consent of the Administrative Agent and each Lender, and any attempted (g) Any Lender may, without the consent of the Borrower or the Administrative Agent, assignment without such consent shall be null and void. at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure (j) Notwithstanding anything to the contrary contained in this Section 9.04 or any other obligations to a Fe Section 9.04(b) shall not apply provision of this Agreement, so long as no Specified Event of Default has occurred and is to any such pledge or assignment of a security interest, provided that no such pledge or assignment continuing or would result therefrom, each Lender shall have the right at any time to sell, assign of a security interest shall release a Lender from any of its obligations hereunder or substitute any or transfer all or a portion of its Loans or Commitments owing to it to the Borrower through such pledgee or assignee for such Lender as a party hereto. (x) Dutch auctions or other offers to purchase open to all Lenders on a pro rata basis consistent with the procedures set forth in Section 2.12(c) or (y) notwithstanding any other provision in this (h) Notwithstanding anything to the contrary contained herein, any Lender (a Agreement, open market purchase on a non-pro rata basis, and the Borrower shall have the right Granting Lender SPV in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, Commitments in accordance with Section 2.21; provided that, in connection with assignments the option to provide to the Borrower all or any part of any Loan that such Granting Lender would pursuant to clause (y) above: otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV (i) the assigning Lender and the Borrower shall execute and deliver to the elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Administrative Agent an Affiliated Lender/Borrower Assignment and Acceptance; Granting Lender shall be obligated to make such Loan pursuant to the terms hereof, and (iii) such assignment will be reflected in the Participant Register. The making of a Loan by an SPV (ii) no proceeds from any Borrowing under any Revolving Credit Facilities hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such may be used to make any such purchase or effect any such assignment or transfer; and Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPV shall be 158 159 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel a result of, this Agreement, any other Loan Document or any agreement or instrument delivered fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in in connection herewith or therewith, the Transactions, any Loan or the use of the proceeds thereof; any way connected with, or as a result of (i) the syndication for the Initial Term Loans, the provided that nothing contained in this sentence will limit the indemnity obligations of any Loan execution, delivery or administration of this Agreement or any other Loan Document or any Party to the extent indirect, special, punitive or consequential damages are included in any third agreement or instrument delivered herewith or therewith, the performance by the parties hereto or party claim in connection with which such Indemnitee is entitled to indemnification hereunder. thereto of their respective obligations hereunder or thereunder or the consummation of the Transactions and the other transactions contemplated thereby (including the Term Facility and the (d) No Indemnitee seeking indemnification or reimbursement under this Agreement syndication thereof), (ii) the use of the proceeds of the Loans, (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a conditioned), settle, compromise, consent to the entry of any judgment in or otherwise seek to party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, terminate any claim, litigation, action, investigation or proceeding referred to herein; provided that any other Loan Party or any of their respective Affiliates or equity holders) or (iv) any actual or the foregoing indemnity will apply to any such settlement in the event that (i) the Borrower was alleged presence or Release of Hazardous Materials on any property currently or formerly owned offered the ability to assume the defense of the action that was the subject matter of such settlement or operated by the Borrower or any of the Subsidiaries, or any Environmental Liability related in and elected not to so assume or (ii) such settlement is entered into more than seventy-five (75) any way to the Borrower or the Subsidiaries; provided that such indemnity shall not, as to any days after receipt by the Borrower of a request by the applicable Indemnitee for reimbursement of Indemnitee, be available (A) to the extent that such losses, claims, damages, liabilities or related its legal or other expenses incurred in connection with such claim, litigation, action, investigation expenses are determined by a court of competent jurisdiction by final and non-appealable judgment or proceeding and the Borrower not having reimbursed such Indemnitee in accordance with such to have resulted primarily from (1) the bad faith, gross negligence or willful misconduct of such request prior to the date of such settlement (provided that the foregoing indemnity will not apply Indemnitee, (2) disputes solely among Indemnitees (or their Related Persons) (other than claims to any settlement made in accordance with this clause (ii) if the Borrower is disputing such against any Indemnitee (x) in its capacity or in fulfilling its role as agent or arranger or any similar expenses in good faith in accordance with paragraph (b) of this Section 9.05), and the foregoing role under the Credit Agreement or (y) arising out of any act or omission on the part of the Borrower or any of its Subsidiaries or Affiliates) or (B) in respect of legal fees or expenses of the final judgment for the plaintiff against an Indemnitee in any such proceeding. Indemnitees, other than the reasonable invoiced fees, expenses and charges of one primary counsel for all Indemnitees taken as a whole (and to the extent deemed reasonably necessary by the (e) Notwithstanding the foregoing, each Indemnitee (and its Related Persons) shall be Administrative Agent in its good faith discretion, one local counsel in each relevant jurisdiction obligated to refund and return promptly any and all amounts paid by the Loan Parties under Section and one special or regulatory counsel in each relevant specialty), and solely in the case of a conflict 9.05(b) to such Indemnitee (or such Related Person) for any such fees, expenses or damages to the of interest or a potential conflict of interest, one additional primary counsel (and, to the extent extent such Indemnitee (or such Related Person) is not entitled to payment of such amounts in deemed reasonably necessary by the Administrative Agent in its good faith discretion, one local accordance with the terms hereof, as determined by a final non-appealable judgment of a court of counsel in each relevant jurisdiction and one special or regulatory counsel in each relevant competent jurisdiction. specialty) to the affected Indemnitees, taken as a whole. This Section 9.05(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any (f) The provisions of this Section 9.05 shall remain operative and in full force and non-Tax claim. Payments under this Section shall be made by the Borrower to the Administrative effect regardless of the expiration of the term of this Agreement, the consummation of the Agent for the benefit of the relevant Indemnitee. transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any (b) To the extent that the Borrower fails to pay any amount required to be paid by it to other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the any Agent (or Affiliate thereof) under Sections 9.05(a) or (b), each Lender severally agrees to pay Collateral Agent or any Lender. All amounts due under this Section 9.05 shall be payable on Share (determined as of the time that written demand therefor. This Section 9.05 shall not apply with respect to Taxes other than Taxes the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; that represent losses, claims or damages arising from any non-Tax claim. provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Agent (or Affiliate thereof) in SECTION 9.06 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, except to the upon its share of the sum of the outstanding Loans at the time. extent prohibited by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such (c) To the extent permitted by applicable law, no Loan Party shall assert, and hereby Lender or its Affiliates to or for the credit or the account of the Borrower against any of and all the waives, any claim against any Indemnitee, and no Indemnitee shall assert, and hereby waives, any obligations of the Borrower now or hereafter existing under this Agreement and other Loan claim against any Loan Party, on any theory of liability, for special, indirect, consequential or Documents held by such Lender, irrespective of whether or not such Lender shall have made any punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as demand under this Agreement or such other Loan Document and although such obligations may 162 163 76797407_14 76797407_14 EU-DOCS\25892879.17 EU-DOCS\25892879.17
ANNEX I COVENANTS CITICORP NORTH AMERICA, INC., as Revolving Credit Lender Save where specified to the contrary or where defined in Section 1.01 of the Credit Credit Agreement Agreement to them in By: Annex II. Name: Xxxx Xxxxxxx Title: Managing Director Save where specified to the contrary, references in this Annex to sections of Articles IV or V are to those sections of this Annex. ARTICLE IV Section 4.01. [Reserved] Section 4.02. [Reserved] Section 4.03. [Reserved] Section 4.04. Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock (a) The Borrower will not and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness (including Acquired Indebtedness) or issue any shares of Disqualified Stock and the Borrower will not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that the Borrower may Incur Indebtedness and issue Indebtedness and issue shares of Preferred Stock if on the date on which such Indebtedness is Incurred or such Disqualified Stock or Preferred Stock is issued, the Consolidated Net Leverage Ratio would have been no greater than 5.50 to 1.00 , in each case determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such Indebtedness had been Incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred, at the beginning of the relevant period. (b) Section 4.04(a) above will not prohibit the Incurrence of the following items of Indebtedness: (1) Indebtedness Incurred pursuant to any Credit Facility (including in respect of any Refinancing Indebtedness in respect thereof, in a maximum aggregate principal amount at any time outstanding not to exceed the greater of $900 million and 400% of Pro Forma EBITDA for the most recently ended four full fiscal quarters for which internal financial statements of the Borrower are available immediately preceding the date of determination (for the avoidance of doubt, without duplication and calculated on the date hereof to include the full amount of Term Loan Commitments, Term Loans and Revolving Credit Commitments outstanding hereunder as of the date hereof); provided, that the amount of Indebtedness which may be incurred by the Borrower and its Restricted Subsidiaries pursuant to this Section 4.04(b)(1) [Signature Page to the Credit Agreement] shall be reduced by an amount (and the corresponding percentage of Pro Forma EBITDA) 77626057_8 EU-DOCS\25939615.7
equal to the aggregate principal amount of the Existing Target Notes which remain for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or outstanding following the completion of the Change of Control Tender; provided further, that discharge any, or otherwise Incurred in respect of any, Indebtedness described in sub-clauses any Indebtedness incurred under this Section 4.04(b)(1) may be refinanced with additional (a), (b) or (c) of this Section 4.04(b)(4) or Section 4.04(b)(5) or Incurred pursuant to Section Indebtedness in an amount equal to the principal of the Indebtedness so refinanced, plus any 4.04(a), (c) Management Advances; and (d) Indebtedness represented by the Security additional amount to pay premiums (including tender premiums), accrued and unpaid interest, expenses, defeasance costs and fees in connection therewith; created under the Intercreditor Agreement and the Security Documents; (2) (a) Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness (5) Indebtedness of (i) any Person Incurred or outstanding on the date on which of the Borrower or any Restricted Subsidiary to the extent such guaranteed Indebtedness was such Person becomes a Restricted Subsidiary or is merged, consolidated, amalgamated or permitted to be incurred by another provision of this Section 4.04; provided that if such otherwise combined with the Borrower or any Restricted Subsidiary or pursuant to any Indebtedness is subordinated in right of payment to, or pari passu in right of payment with, acquisition of assets and assumption of related liabilities by the Borrower or a Restricted the Loans or a Loan Guarantee, as applicable, then the Guarantee of such Indebtedness shall Subsidiary (including in contemplation of such transaction) or (ii) the Borrower or any be subordinated in right of payment to, or pari passu in right of payment with, the Loans or Restricted Subsidiary Incurred to provide all or any portion of the funds utilized to such Loan Guarantee, as applicable, substantially to the same extent as such guaranteed consummate the transaction or series of related transactions pursuant to which a Person Indebtedness or (b) without limiting Section 4.06, Indebtedness arising by reason of any Lien became a Restricted Subsidiary or was otherwise acquired by the Borrower or a Restricted granted by or applicable to the Borrower or any Restricted Subsidiary securing Indebtedness Subsidiary or pursuant to any Investment or acquisition of assets and assumption of related of the Borrower or any Restricted Subsidiary so long as the Incurrence of such Indebtedness liabilities by the Borrower or a Restricted Subsidiary or otherwise in connection with or in is not prohibited by the terms of this Agreement; contemplation of such acquisition or other transaction; provided, however, that (a) the Borrower would have been able to incur $1.00 of additional Indebtedness pursuant to Section (3) Indebtedness of the Borrower owing to and held by any Restricted Subsidiary, 4.04(a) after giving effect to the Incurrence of such Indebtedness pursuant to this Section or Indebtedness of a Restricted Subsidiary owing to and held by the Borrower or any other 4.04(b)(5) or (b) the Consolidated Net Leverage Ratio would not be greater than it was Restricted Subsidiary; provided, however, that if the Borrower or any Guarantor is the obligor immediately prior to giving effect to such Incurrence; on such Indebtedness and the payee is not the Borrower or a Guarantor, such Indebtedness must be unsecured and ((i) except in respect of intercompany current liabilities incurred in (6) [Reserved]; connection with cash management positions of the Borrower and the Restricted Subsidiaries and the Global Trading Loan and (ii) only to the extent legally permitted (the Borrower and (7) (a) Indebtedness under Currency Agreements (other than Currency the Restricted Subsidiaries having completed all procedures required in the reasonable Agreements described in (b) below), Interest Rate Agreements and Commodity Hedging judgment of directors or officers of the obligee or obligor to protect such Persons from any Agreements and (b) Indebtedness under Currency Agreements entered into in order to hedge penalty or civil or criminal liability in connection with the subordination of such any operating expenses and capital expenditures Incurred in the ordinary course of business; Indebtedness)) expressly subordinated to the prior payment in full in cash of all obligations in each case with respect to clauses (a) and (b) hereof, entered into for bona fide hedging then due with respect to the Loans, in the case of the Borrower, or the Loan Guarantees, in purposes of the Borrower or the Restricted Subsidiaries and not for speculative purposes (as the case of a Guarantor; provided that: determined in good faith by an Officer or the Board of Directors of the Parent Guarantor or the Borrower); (i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being (8) Indebtedness consisting of (A) mortgage financings, Purchase Money beneficially held by a Person other than the Borrower or a Obligations or other financings Incurred for the purpose of financing all or any part of the Restricted Subsidiary; and purchase price or cost of design, construction, installation or improvement of property (real or personal), plant or equipment or other assets (including Capital Stock) used or useful in a (ii) any sale or other transfer of any such Indebtedness to a Person Similar Business or (B) Indebtedness otherwise Incurred to finance the purchase, lease, rental other than the Borrower or a Restricted Subsidiary, or cost of design, construction, installation or improvement of property (real or personal), plant or equipment that is used or useful in a Similar Business, whether through the direct shall be deemed, in each case, to constitute an Incurrence of such Indebtedness purchase of assets or the Capital Stock of any Person owning such assets, in an aggregate not permitted by this Section 4.04(b)(3) by the Borrower or such Restricted Subsidiary, as the outstanding principal amount which, when taken together with the principal amount of all case may be; other Indebtedness Incurred pursuant to this Section 4.04(b)(8) and then outstanding, will not exceed at any time outstanding the greater of $20 million and 10% of Pro Forma EBITDA for (4) (a) Indebtedness represented by the Senior Secured Notes issued on the Initial the most recently ended four full fiscal quarters for which internal financial statements of the Funding Date and the Guarantees thereof; (b) any Indebtedness (other than Indebtedness Borrower are available immediately preceding the date of determination; provided that any described in Section 4.04(b)(1) and Section 4.04(b)(3)) outstanding on the Initial Funding Indebtedness incurred under this Section 4.04(b)(8) may be refinanced with additional Date, after giving effect to the Transactions, including the issuance of the Senior Secured Indebtedness in an amount equal to the principal of the Indebtedness so refinanced, plus any Notes and the application of the proceeds thereof and the repurchase of any Existing Target Notes in the Change of Control Tender; (c) Refinancing Indebtedness Incurred in exchange 2 3 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
additional amount to pay premiums (including tender premiums), accrued and unpaid (other than to the Borrower or a Restricted Subsidiary) of its Subordinated Shareholder interest, expenses, defeasance costs and fees in connection therewith; Funding or Capital Stock (other than Disqualified Stock, Designated Preference Shares, the Equity Contribution or an Excluded Contribution) or otherwise contributed to the equity (9) Indebtedness in respect of (a) -insurance (other than through the issuance of Disqualified Stock, Designated Preference Shares, the obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, Equity Contribution or an Excluded Contribution) of the Borrower, in each case, subsequent VAT or other tax or other guarantees or other similar bonds, instruments or obligations and to the Closing Date; provided, however, that (i) any such Net Cash Proceeds that are so completion guarantees and warranties provided by the Borrower or a Restricted Subsidiary or received or contributed shall be excluded for purposes of making Restricted Payments under relating to liabilities, obligations or guarantees (including auction guarantees) Incurred in the Section 4.05(a), Section 4.05(b)(1), Section 4.05(b)(6) and Section 4.05(b)(10) to the extent ordinary course of business or in respect of any governmental requirement, including in the Borrower or a Restricted Subsidiary incurs Indebtedness in reliance thereon and (ii) any relation to a governmental requirement to provide a guarantee or bond, (b) letters of credit, Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this Section 4.04(b)(14) to the extent the Borrower or any to liabilities or obligations Incurred in the ordinary course of business, provided, however, Restricted Subsidiary makes a Restricted Payment under Section 4.05(b)(1), Section that upon the drawing of such letters of credit or other instrument, such obligations are 4.05(b)(6) and Section 4.05(b)(10) in reliance thereon; provided that any Indebtedness reimbursed within 30 days following such drawing; (c) the financing of insurance premiums incurred under this Section 4.04(b)(14) may be refinanced with additional Indebtedness in an in the ordinary course of business; and (d) any customary cash management, cash pooling or amount equal to the principal of the Indebtedness so refinanced, plus any additional amount netting or setting off arrangements in the ordinary course of business; to pay premiums (including tender premiums), accrued and unpaid interest, expenses, defeasance costs and fees in connection therewith; (10) Indebtedness arising from agreements providing for customary guarantees, indemnification, obligations in respect of earnouts or other adjustments of purchase price or, (15) Indebtedness of the Borrower or any of its Restricted Subsidiaries arising in each case, similar obligations, in each case, Incurred or assumed in connection with the pursuant to any Permitted Reorganization; and acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or (16) Indebtedness, Disqualified Stock or Preferred Stock in an aggregate principal disposing of such business or assets or such Subsidiary for the purpose of financing such amount or liquidation preference that, when aggregated with the principal amount or acquisition or disposition); liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and Incurred (including any Refinancing Indebtedness in respect thereof) (11) Indebtedness arising from the honoring by a bank or other financial institution pursuant to this Section 4.04(b)(16) and then outstanding, will not exceed the greater of $75 of a check, draft or similar instrument drawn against insufficient funds in the ordinary course million and 33% of Pro Forma EBITDA for the most recently ended four full fiscal quarters of business; provided, however, that such Indebtedness is extinguished within 30 Business for which internal financial statements of the Borrower are available immediately preceding Days of Incurrence; the date of determination; provided that any Indebtedness incurred under this Section 4.04(b)(16) may be refinanced with additional Indebtedness in an amount equal to the (12) Indebtedness under daylight borrowing facilities incurred in connection with principal of the Indebtedness so refinanced, plus any additional amount to pay premiums any refinancing of Indebtedness (including by way of set-off or exchange); provided that (including tender premiums), accrued and unpaid interest, expenses, defeasance costs and such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced fees in connection therewith. and the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing, so long as any such Indebtedness is Notwithstanding the foregoing, a Restricted Subsidiary that is not a Guarantor may not Incur repaid within three days of the date on which such Indebtedness is Incurred; Indebtedness or issue Disqualified Stock or Preferred Stock under Section 4.04(a) and Sections 4.04(b)(1), (5), (14) and (16) if the Non-Guarantor Debt Cap would be exceeded, as (13) Indebtedness Incurred pursuant to any factoring, securitizations, receivables determined on a pro forma basis (including a pro forma application of the net proceeds financings or similar arrangements, including by a Receivables Entity in a Qualified therefrom). Receivables Financing, with respect to which recourse to the Borrower or any Restricted Subsidiary in connection with such transactions is limited to the extent customary (as (c) For purposes of determining compliance with, and the outstanding principal amount determined by the Borrower in good faith) for similar transactions in the applicable of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 4.04: jurisdictions (including Standard Securitization Undertakings and, to the extent applicable, in (1) in the event that Indebtedness meets the criteria of more than one of the types to any transfer by a Parent, the Borrower or any Restricted Subsidiary); of Indebtedness described in Section 4.04(a) and Section 4.04(b), the Borrower, in its sole discretion, will classify, and may from time to time reclassify, such item of Indebtedness and (14) Indebtedness Incurred by the Borrower or a Restricted Subsidiary or only be required to include the amount and type of such Indebtedness in one of the clauses of Disqualified Stock of the Borrower in an aggregate outstanding principal amount which, Section 4.04(a) or Section 4.04(b); provided that Indebtedness Incurred (or deemed Incurred) when taken together with the principal amount of all other Indebtedness Incurred pursuant to on the Initial Funding Date or any Refinancing Indebtedness in respect thereof under Section this Section 4.04(b)(14) and then outstanding, will not exceed 100% of the Net Cash 4.04(b)(1) cannot be reclassified; Proceeds received by the Borrower and the Restricted Subsidiaries from the issuance or sale 4 5 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(2) subject to clause (1) above, all Indebtedness (x) outstanding on the Closing currency exchange rate in effect on the date of such refinancing, such dollar-denominated Date under the Initial Term Loan Facility shall be deemed Incurred on the Closing Date restriction shall be deemed not to have been exceeded so long as the principal amount of such under Section 4.04(b)(1) and not Section 4.04(a) or Section 4.04(b)(4)(b); Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced plus any amount to pay premiums (including tender premiums), accrued and (3) unpaid interest, expenses, defeasance costs and fees in connection therewith; (b) the Dollar acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is Equivalent of the principal amount of any such Indebtedness outstanding on the Initial otherwise included in the determination of a particular amount of Indebtedness shall not be Funding Date shall be calculated based on the relevant currency exchange rate in effect on included; the Initial Funding Date; and (c) if any such Indebtedness that is denominated in a currency other than dollars is subject to a Currency Agreement with respect to the currency in which (4) or other such Indebtedness is denominated covering principal amount and interest payable on such similar instruments are Incurred pursuant to any Credit Facility and are being treated as Indebtedness, the amount of such Indebtedness will be the Dollar Equivalent of the principal Incurred pursuant to Section 4.04(b)(1), Section 4.04(b)(8), Section 4.04(b)(14) or Section payment required to be made under such Currency Agreement plus the Dollar Equivalent of 4.04(b)(16) or Section 4.04(a) and the letters of credit, bankers any premium which is at such time due and payable but is not covered by such Currency instruments relate to other Indebtedness, then such other Indebtedness shall not be included; Agreement. (5) the principal amount of any Disqualified Stock of the Borrower or a Restricted (g) For purposes of determining compliance with the Consolidated Net Leverage Ratio or Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the the Consolidated Net Senior Secured Leverage Ratio on the Incurrence of Indebtedness, the maximum mandatory redemption or repurchase price (not including, in either case, any Dollar Equivalent of the principal amount of Indebtedness denominated in another currency redemption or repurchase premium) or the liquidation preference thereof; shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, or at the option of the Borrower, the date first committed; (6) Indebtedness permitted by this Section 4.04 need not be permitted solely by provided that (a) if such Indebtedness is Incurred to refinance other Indebtedness reference to one provision permitting such Indebtedness but may be permitted in part by one denominated in a currency other than dollars, and such refinancing would cause the such provision and in part by one or more other provisions of this Section 4.04 permitting applicable dollar-denominated restriction to be exceeded if calculated at the relevant currency such Indebtedness; and exchange rate in effect on the date of such refinancing, such dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such (7) the amount of Indebtedness issued at a price that is less than the principal Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being amount thereof will be equal to the amount of the liability in respect thereof determined on refinanced plus any amount to pay premiums (including tender premiums), accrued and the basis of GAAP. unpaid interest, expenses, defeasance costs and fees in connection therewith; and (b) the (d) Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion Dollar Equivalent of the principal amount of any such Indebtedness outstanding on the Initial or amortization of original issue discount, the payment of interest in the form of additional Funding Date shall be calculated based on the relevant currency exchange rate in effect on Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or the Initial Funding Date. Disqualified Stock or the reclassification of commitments or obligations not treated as (h) In addition, for purposes of calculating the Consolidated Net Senior Secured Leverage Indebtedness due to a change in GAAP will not be deemed to be an Incurrence of Ratio or the Consolidated Net Leverage Ratio to test compliance with any covenant in this Indebtedness for purposes of this Section 4.04. The amount of any Indebtedness outstanding Agreement, in determining the amount of Indebtedness outstanding in dollars on any date of as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued determination, with respect to any Indebtedness denominated in a currency other than dollars with original issue discount and (b) the principal amount, or liquidation preference thereof, in Foreign Currency the case of any other Indebtedness. (1) subject to a currency swap arrangement or contract, the aggregate principal (e) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any amount of such Foreign Currency Indebtedness on any such date of determination shall be the Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as dollar amount of the aggregate principal amount to be paid by the Borrower or a Restricted of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under Subsidiary on the maturity date of such currency swap arrangement or contract pursuant to this Section 4.04, the Borrower shall be in Default of this Section 4.04). the terms thereof; or (f) For purposes of determining compliance with any dollar-denominated restriction on (2) subject to a currency forward arrangement, forward accretion curve or the Incurrence of Indebtedness, the Dollar Equivalent of the principal amount of Indebtedness contract, the aggregate principal amount of such Foreign Currency Indebtedness shall be denominated in another currency shall be calculated based on the relevant currency exchange converted into dollars at the exchange rate specified under the terms of such currency forward rate in effect on the date such Indebtedness was Incurred or at the option of the Borrower, on arrangement, forward accretion curve or contract as applicable to such Foreign Currency the date first committed; provided that (a) if such Indebtedness is Incurred to refinance other Indebtedness on such date of determination. Indebtedness denominated in a currency other than dollars, and such refinancing would cause the applicable dollar-denominated restriction to be exceeded if calculated at the relevant 6 7 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(i) For the avoidance of doubt, notwithstanding a Group member entering into any such (3) make any principal payment on, or purchase, repurchase, redeem, defease or arrangement or contract hedging foreign exchange exposure of any Foreign Currency otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or Indebtedness, for the purposes of calculating the Consolidated Net Leverage Ratio or the scheduled sinking fund payment, any Subordinated Indebtedness (other than (a) any such Consolidated Net Senior Secured Leverage Ratio, the aggregate principal amount of payment, purchase, repurchase, redemption, defeasance or other acquisition or retirement or Indebtedness subject to any such arrangement or contract shall be attributed to the total in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, Indebtedness of the Person that originally Incurred such Indebtedness. in each case, due within one year of the date of payment, purchase, repurchase, redemption, defeasance or other acquisition or retirement; and (b) any Indebtedness Incurred pursuant to (j) Notwithstanding any other provision of this Section 4.04, the maximum amount of Section 4.04(b)(3) hereof); Indebtedness that the Borrower or a Restricted Subsidiary may Incur pursuant to this Section 4.04 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate (4) make any payment on or with respect to, or purchase, redeem, defease or of currencies. otherwise acquire or retire for value any Subordinated Shareholder Funding (other than the capitalization of interest in the form of additional Subordinated Shareholder Funding and (k) Neither the Borrower nor any Guarantor will incur any Indebtedness (including any other than in exchange for Capital Stock of the Borrower (other than Disqualified Stock) or Indebtedness permitted to be Incurred pursuant to Section 4.04(b)) that is contractually for options, warrants or other rights to purchase such Capital Stock of the Borrower (other subordinated in right of payment to any other Indebtedness of the Borrower or such than Disqualified Stock)); or Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Loans and the applicable Loan Guarantee on substantially identical terms (as determined (5) make any Restricted Investment in any Person; in good faith by the Borrower); provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Borrower or (any such dividend, distribution, payment, purchase, redemption, repurchase, defeasance, any Guarantor solely by virtue of being unsecured, by virtue of being secured with different other acquisition, retirement or Restricted Investment referred to in clauses (1) through (5) of collateral, by virtue of being secured on a junior priority basis, by virtue of not being Restricted Payment if at the time the Borrower or a Restricted Subsidiary makes such Restricted Payment: waterfall or other payment-ordering provisions affecting different tranches of Indebtedness under Credit Facilities. (a) a Default or Event of Default (or in the case of a Restricted Investment, an Event of Default under Section 7.01(a) or Section 7.01(g) of the Credit Section 4.05. Limitation on Restricted Payments Agreement) shall have occurred and be continuing (or would result immediately thereafter therefrom); (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (b) except in the case of a Restricted Investment, if such Restricted Payment is (1) declare or pay any dividend or make any other payment or distribution on made in reliance on clause (c)(i) below, the Borrower is not able to Incur an additional $1.00 of Indebtedness pursuant to Section 4.04(a) hereof (including, without limitation, any payment in connection with any merger or consolidation after giving effect, on a pro forma basis, to such Restricted Payment; or involving the Borrower or any Restricted Subsidiary) except: (c) the aggregate amount of such Restricted Payment and all other Restricted (a) dividends or distributions payable in Capital Stock of the Borrower (other Payments made by the Borrower and the Restricted Subsidiaries than Disqualified Stock) or in options, warrants or other rights to purchase subsequent to the Closing Date (and not returned or rescinded) (including such Capital Stock of the Borrower (other than Disqualified Stock) or in Permitted Payments permitted below by Section 4.05(b)(5) (without Subordinated Shareholder Funding; and duplication of amounts paid pursuant to any other clause of Section 4.05(b)), Section 4.05(b)(6), Section 4.05(b)(10), and Section 4.05(b)(20) (b) dividends or distributions payable to the Borrower or a Restricted (to the extent it relates to Restricted Payments permitted by Section Subsidiary (and, in the case of any such Restricted Subsidiary making such 4.05(b)(5) or Section 4.05(b)(10)), but excluding all other Restricted dividend or distribution, to holders of its Capital Stock other than the Payments permitted by Section 4.05(b)) would exceed the sum of (without Borrower or another Restricted Subsidiary on no more than a pro rata duplication): basis, measured by value); (i) an amount equal to 50% of the Consolidated Net (2) purchase, redeem, retire or otherwise acquire for value (including, without Income for the period beginning on the first day of the first full fiscal limitation, any payment in connection with any merger or consolidation involving the quarter commencing prior to the Closing Date to the end of the Borrower, any Capital Stock of the Borrower or any direct or indirect Parent of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than in exchange date of such Restricted Payment for which internal consolidated for Capital Stock of the Borrower (other than Disqualified Stock)); financial statements of the Borrower are available, taken as a single 8 9 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\00000000.7
accounting period or, in the case such Consolidated Net Income for by way of dividend, distribution, interest payments or returns of capital) such period is a deficit, minus 100% of such deficit; to the Borrower or any Restricted Subsidiary, which amount, in each case under this clause (iv), constituted a Restricted Payment made after (ii) 100% of the aggregate Net Cash Proceeds, and the fair the Closing Date; provided, however, that no amount will be included market value (as determined in accordance with Section 4.05(c)) of in Consolidated EBITDA for purposes of Section 4.05(a)(c)(i) to the property or assets or marketable securities, received by the Borrower from the issue or sale of its Capital Stock (other than Disqualified 4.05(a)(c)(iv); Stock or Designated Preference Shares) or Subordinated Shareholder Funding subsequent to the Closing Date or otherwise contributed to the (v) the amount of the cash and the fair market value (as equity (other than through the issuance of Disqualified Stock or determined in accordance with Section 4.05(c)) of property, assets or Designated Preference Shares) of the Borrower subsequent to the marketable securities received by the Borrower or any Restricted Closing Date (other than (x) Net Cash Proceeds or property or assets or Subsidiary after the Closing Date in connection with: marketable securities received from an issuance or sale of such Capital Stock to the Borrower or a Restricted Subsidiary or an employee stock (A) the sale or other disposition (other than to the ownership plan or trust established by the Borrower or any Subsidiary Borrower or a Restricted Subsidiary or an employee stock of the Borrower for the benefit of its employees to the extent funded by ownership plan or trust established by the Borrower or any the Borrower or any Restricted Subsidiary, (y) Net Cash Proceeds or Subsidiary of the Borrower for the benefit of its employees to property or assets or marketable securities to the extent that any the extent funded by the Borrower or any Restricted Subsidiary) Restricted Payment has been made from such proceeds in reliance on of Capital Stock of an Unrestricted Subsidiary of the Borrower; Section 4.05(b)(6), and (z) Excluded Contributions and the Equity and Contribution); (B) any dividend or distribution made by an (iii) 100% of the aggregate Net Cash Proceeds, and the fair Unrestricted Subsidiary to the Borrower or a Restricted market value (as determined in accordance with Section 4.05(c)) of Subsidiary; property or assets or marketable securities, received by the Borrower or any Restricted Subsidiary from the issuance or sale (other than to provided, however, that no amount will be included in the Borrower or a Restricted Subsidiary or an employee stock Consolidated EBITDA for purposes of Section 4.05(a)(c)(i) to the ownership plan or trust established by the Borrower or any Subsidiary of the Borrower for the benefit of its employees to the extent funded by 4.05(a)(c)(v); and the Borrower or any Restricted Subsidiary) by the Borrower or any Restricted Subsidiary subsequent to the Closing Date of any (vi) in the case of the designation of an Unrestricted Indebtedness that has been converted into or exchanged for Capital Subsidiary as a Restricted Subsidiary or all of the assets of such Stock of the Borrower (other than Disqualified Stock or Designated Unrestricted Subsidiary are transferred to the Borrower or a Restricted Preference Shares) or Subordinated Shareholder Funding (plus the Subsidiary, or the Unrestricted Subsidiary is merged or consolidated amount of any cash, and the fair market value (as determined in into the Borrower or a Restricted Subsidiary, in each case, after the accordance with Section 4.05(c)) of property or assets or marketable Closing Date, 100% of such amount received in cash and the fair securities, received by the Borrower or any Restricted Subsidiary upon market value (as determined in accordance with Section 4.05(c)) of such conversion or exchange) but excluding (x) Net Cash Proceeds or any property, assets or marketable securities received by the Borrower property or assets or marketable securities to the extent that any or a Restricted Subsidiary in respect of such redesignation, merger, Restricted Payment has been made from such proceeds in reliance on consolidation or transfer of assets, excluding any amount of any Section 4.05(b)(6), and (y) Excluded Contributions and the Equity Investment in such Unrestricted Subsidiary pursuant to clause 18(b) of Contribution; 4.05(a)(c)(vi); provided however, that no amount will be included in (iv) the amount equal to the net reduction in Restricted Consolidated EBITDA for purposes of Section 4.05(a)(c)(i) to the Investments made by the Borrower or any of the Restricted Subsidiaries resulting from repurchases, redemptions or other 4.05(a)(c)(vi); provided further, however, that such amount shall not acquisitions or retirements of any such Restricted Investment, proceeds exceed the amount included in the calculation of the amount of realized upon the sale or other disposition to a Person other than the Restricted Payments referred to in the first sentence of this Section Borrower or a Restricted Subsidiary of any such Restricted Investment, 4.05(a)(c). repayments of loans or advances or other transfers of assets (including 10 11 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(b) to the extent required by the agreement governing such Subordinated (b) Permitted Indebtedness (or such Indebtedness of any Parent), following the Payments occurrence of a Change of Control (or other similar event described (1) any Restricted Payment made in exchange (including any such exchange have been terminated and all Obligations (other than (A) contingent pursuant to the exercise of a conversion right or privilege in connection with which cash is indemnification obligations as to which no claim has been asserted and (B) paid in lieu of the issuance of fractional shares) for, or out of the Net Cash Proceeds within obligations and liabilities under Treasury Services Agreements and Swap 120 days after the sale (other than to the Borrower or a Subsidiary of the Borrower ) of, Contracts not due and payable) shall have been paid in full and all Letters Capital Stock of the Borrower (other than Disqualified Stock or Designated Preference Shares of Credit (other than Letters of Credit that are Cash Collateralized or back- or through an Excluded Contribution), Subordinated Shareholder Funding or within 120 days stopped by a letter of credit in form, amount and substance reasonably after the contribution to the equity (other than through the issuance of Disqualified Stock or satisfactory to the applicable L/C Issuer) shall have expired or been Designated Preference Shares or through an Excluded Contribution) of the Borrower; terminated (or any Event of Default under Section 7.01(i) of the Credit Agreement shall have been waived), prior to purchasing, repurchasing, (2) any purchase, repurchase, redemption, defeasance or other acquisition or redeeming, defeasing or otherwise acquiring or retiring such Subordinated retirement of Subordinated Indebtedness of the Borrower or a Subsidiary Guarantor made by Indebtedness (or making any such loans, advances, dividends or other exchange for, or out of the Net Cash Proceeds within 120 days after the Incurrence of, distributions to any Parent) and (ii) at a purchase price not greater than Refinancing Indebtedness permitted to be Incurred pursuant to Section 4.04; 101% of the principal amount of such Subordinated Indebtedness or such Indebtedness of any Parent plus accrued and unpaid interest (and costs, (3) (a) any purchase, repurchase, redemption, defeasance or other acquisition or expenses and fees incurred in connection therewith); and retirement of Preferred Stock of the Borrower or a Restricted Subsidiary made by exchange for or out of the Net Cash Proceeds within 120 days after the sale of Preferred Stock of the (c) consisting of Acquired Indebtedness (other than Indebtedness Incurred Borrower or a Restricted Subsidiary, and (b) any purchase, repurchase, redemption, defeasance (A) to provide all or any portion of the funds utilized to consummate the or other acquisition or retirement of Disqualified Stock of the Borrower or a Restricted transaction or series of related transactions pursuant to which such Person Subsidiary made by exchange for or out of the Net Cash Proceeds within 120 days after the sale became a Restricted Subsidiary or was otherwise acquired by the of Disqualified Stock of the Borrower or a Restricted Subsidiary, as the case may be, that, in Borrower or a Restricted Subsidiary or (B) otherwise in connection with each case under (a) and (b), is permitted to be Incurred pursuant to Section 4.04, and that in or in contemplation of such acquisition). each case (other than such sale of Preferred Stock of the Borrower that is not Disqualified Stock) constitutes Refinancing Indebtedness; (5) any dividends paid within 60 days after the date of declaration if at such date of declaration such dividend would have complied with this Section 4.05; (4) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness (or any loans, advances, dividends or other (6) the purchase, repurchase, redemption, defeasance or other acquisition, distributions by the Borrower to any Parent to permit such Parent to purchase, repurchase, cancellation or retirement for value of Capital Stock of the Borrower, any Restricted redeem, defease or otherwise acquire or retire Indebtedness of any Parent so long as the Net Subsidiary or any Parent (including any options, warrants or other rights in respect thereof) Cash Proceeds (or portion thereof) of such Indebtedness has been received by the Borrower and loans, advances, dividends or distributions by the Borrower to any Parent to permit any from the issue or sale of its Capital Stock (other than Disqualified Stock or Designated Parent to purchase, repurchase, redeem, defease or otherwise acquire, cancel or retire for Preference Shares) or Subordinated Shareholder Funding subsequent to the Closing Date or value Capital Stock of the Borrower, any Restricted Subsidiary or any Parent (including any otherwise contributed to the equity (other than through the issuance of Disqualified Stock or options, warrants or other rights in respect thereof), or payments to purchase, repurchase, Designated Preference Shares) of the Borrower subsequent to the Closing Date): redeem, defease or otherwise acquire, cancel or retire for value Capital Stock of the Borrower, any Restricted Subsidiary or any Parent (including any options, warrants or other (a) (i) from Net Available Cash to the extent permitted under Section 4.08 but rights in respect thereof), in each case from Management Investors; provided that such only if the Borrower shall have first complied with its obligations to payments, loans, advances, dividends or distributions do not exceed an amount (net of prepay all Term Loans to the extent required by Section 2.13(a) of the repayments if any such loans or advances equal to the greater of $20 million and 10% of Pro Credit Agreement, prior to purchasing, repurchasing, redeeming, defeasing Forma EBITDA for the most recently ended four full fiscal quarters for which internal or otherwise acquiring or retiring such Subordinated Indebtedness (or financial statements of the Borrower are available immediately preceding the date of making any such loans, advances, dividends or other distributions to any determination (which, subsequent to the consummation of an underwritten public Equity Parent) and (ii) at a purchase price not greater than 100% of the principal Offering by the Borrower or any Parent, shall increase to the greater of $40 million and amount of such Subordinated Indebtedness (or such Indebtedness of any 20.0% of Pro Forma EBITDA for the most recently ended four full fiscal quarters for which Parent) plus accrued and unpaid interest (and costs, expenses and fees internal financial statements of the Borrower are available immediately preceding the date of incurred in connection therewith); determination); provided further, however, that such payments, loans, advances, dividends or distributions in any such succeeding calendar year do not exceed an amount (net of 12 13 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
repayments of any such loans or advances) equal to (1) the greater of $35 million and 15.0% limitation of this Section 4.05 or otherwise to facilitate any dividend or other return of capital of Pro Forma EBITDA for the most recently ended four full fiscal quarters for which internal to the holders of such Capital Stock (as determined in good faith by an Officer or the Board financial statements of the Borrower are available immediately preceding the date of of Directors of the Borrower ); determination (which, subsequent to the consummation of an underwritten public Equity Offering by the Borrower or any Parent, shall increase to the greater of $55 million and (12) Restricted Payments in an aggregate amount outstanding at any time not to 25.0% of Pro Forma EBITDA for the most recently ended four full fiscal quarters for which exceed the fair market value of Excluded Contributions, or Investments in exchange for or internal financial statements of the Borrower are available immediately preceding the date of using as consideration Investments previously made under this Section 4.05(b)(12); determination) in any calendar year), plus (2) the Net Cash Proceeds received by the Borrower or the Restricted Subsidiaries since the Closing Date (including through receipt of (13) payment of any Receivables Fees and purchases of Receivables Assets proceeds from the issuance or sale of its Capital Stock or Subordinated Shareholder Funding pursuant to a Receivables Repurchase Obligation in connection with a Qualified Receivables to a Parent) from, or as a contribution to the equity (in each case under this Section Financing; 4.05(b)(6), other than through the issuance of Disqualified Stock or Designated Preference Shares) of the Borrower from, the issuance or sale to Management Investors of Capital Stock (14) dividends or other distributions of Capital Stock, Indebtedness or other (including any options, warrants or other rights in respect thereof), to the extent such Net securities of Unrestricted Subsidiaries; Cash Proceeds are not included in any calculation under Section 4.05(a)(c)(ii); (15) [Reserved]; (7) the declaration and payment of dividends to holders of any class or series of (16) the declaration and payment of dividends to holders of any class or series of Disqualified Stock, or of any Preferred Stock of a Restricted Subsidiary, Incurred in Designated Preference Shares of the Borrower issued after the Closing Date; provided, accordance with the terms of Section 4.04; however, that the amount of all dividends declared or paid by the Borrower pursuant to this (8) purchases, repurchases, redemptions, defeasances or other acquisitions or Section 4.05(b)(16) shall not exceed the Net Cash Proceeds received by the Borrower from retirements of Capital Stock deemed to occur upon the exercise of stock options, warrants or the issuance or sale of such Designated Preference Shares; other rights in respect thereof if such Capital Stock represents a portion of the exercise price (17) so long as no Event of Default has occurred and is continuing (or would result thereof; therefrom), any Restricted Payment to the extent that, after giving pro forma effect to any (9) dividends, loans, advances or distributions to any Parent or other payments by such Restricted Payment, the Consolidated Net Leverage Ratio would be no greater than 4.00 the Borrower or any Restricted Subsidiary in amounts equal to (without duplication) the to 1.00; amounts required for any Parent to pay: (18) so long as no Event of Default has occurred and is continuing (or would result (a) any Parent Expenses of any Parent or any Related Taxes; and therefrom), Restricted Payments in an aggregate amount outstanding at any time not to exceed the greater of $45 million and 20% of Pro Forma EBITDA for the most recently (b) amounts constituting or to be used for purposes of making payments to the ended four full fiscal quarters for which internal financial statements of the Borrower are extent specified in Section 4.09(b)(2) (with respect to fees and expenses available immediately preceding the date of determination; incurred in connection with the transactions described therein), Section 4.09(b)(5) and Section 4.09(b)(11); (19) Restricted Payments constituting any part of any Permitted Reorganization and, in each case, fees and expenses relating thereto; (10) the declaration and payment by the Borrower of, or loans, advances, dividends or distributions to any Parent to pay, dividends on the common stock or common equity (20) Restricted Payments to finance Investments or other acquisitions by a Parent interests of the Borrower or any Parent, or purchases, repurchases or other acquisitions or or any Affiliate (other than the Borrower or a Restricted Subsidiary) which would be retirements of common stock or common equity interests of the Borrower or any Parent, in an otherwise permitted to be made pursuant to this Section 4.05 if made by the Borrower or a amount not to exceed in any fiscal year the greater of (a) 6% of the Net Cash Proceeds Restricted Subsidiary; provided, that (i) such Restricted Payment shall be made within 120 received by the Borrower from a Public Offering or contributed to the equity (other than days of the closing of such Investment or other acquisition, (ii) such Parent or Affiliate of the through the issuance of Disqualified Stock or Designated Preference Shares or through an Borrower shall, on or prior to the date such Restricted Payment is made or if later, promptly Excluded Contribution) of the Borrower or contributed as Subordinated Shareholder Funding following the closing of the Investment or the acquisition, cause (1) all property acquired to the Borrower and (b) an aggregate amount per annum not to exceed 5% of Market (whether assets or Capital Stock) to be contributed to the Borrower or one of its Restricted Capitalization; Subsidiaries or (2) the merger, amalgamation, consolidation, or sale of the Person formed or acquired into the Borrower or one of its Restricted Subsidiaries (in a manner not prohibited (11) payments by the Borrower or loans, advances, dividends or distributions to any by Article V of this Annex I) in order to consummate such Investment or other acquisition, Parent to make payments, to holders of Capital Stock of the Borrower or any Parent in lieu of (iii) such Parent or Affiliate of the Borrower receives no consideration or other payment in the issuance of fractional shares of such Capital Stock; provided, however, that any such connection with such transaction except to the extent the Borrower or a Restricted Subsidiary payment, loan, advance, dividend or distribution shall not be for the purpose of evading any could have given such consideration or made such payment in compliance with this Section 14 15 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
4.05 or Section 4.09 (without reference to this Section 4.05(b)(20)) and (iv) any property Restricted Payment (or portion thereof) or such Permitted Investment (or portion thereof) on received in connection with such transaction shall not constitute an Excluded Contribution the date of its payment or later reclassify such Restricted Payment (or portion thereof) or such up to the amount of such Restricted Payment made under this Section 4.05(b)(20); Permitted Investment (or portion thereof) in any manner that complies with this Section 4.05. (21) any payments in cash or in kind relating to the settlement of any future, Section 4.06. Limitation on Liens forward or other derivative contract entered into for non-speculative purposes; (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, (22) the declaration and payment of dividends or distributions by the Borrower to, directly or indirectly, create, Incur or suffer to exist any Lien upon any of their property or or the making of loans to, a Parent in amounts required for a Parent to pay or cause to be assets (including Capital Stock of a Restricted Subsidiary), whether owned on the Effective paid, in each case without duplication, fees and expenses related to any equity or debt Date or acquired after that date, or any interest therein or any income or profits therefrom, offering (whether or not successful) of such Parent; Initial Lien of any property or asset that does not constitute Collateral, (i) Permitted Liens or (ii) Liens on (23) after the Closing Date, any distribution of net cash proceeds from any sales or assets that are not Permitted Liens if the Obligations (or a Loan Guarantee in the case of dispositions of assets or any distribution of assets in connection with the Real Estate Portfolio Liens of a Guarantor) are directly secured equally and ratably with, or prior to, in the case of Transfer and the SFS Business Transfer; provided that: (i) no Default or Event of Default Liens with respect to Subordinated Indebtedness, the Indebtedness secured by such Initial exists and is continuing, (ii)(x) on a pro forma basis the Consolidated Net Leverage Ratio is Lien for so long as such Indebtedness is so secured and (b) in the case of any property or no greater than 5.75 to 1.00 (provided that, if on a pro forma basis for each such distribution, assets that constitutes Collateral, Permitted Collateral Liens. the Consolidated Net Leverage Ratio is higher than 5.75 to 1.00, the Borrower shall prepay sufficient Term Loans to ensure that the Consolidated Net Leverage Ratio, on a pro forma (b) Any such Lien created in favor of the Secured Parties pursuant to Section 4.06(a)(ii) basis for such distribution and prepayment becomes no greater than 5.75 to 1.00) and (y) the will be automatically and unconditionally released and discharged upon (i) the release and aggregate Pro Forma EBITDA generated by the assets distributed in connection with the Real discharge of the Initial Lien to which it relates, or (ii) as otherwise set forth under Section Estate Portfolio Transfer accounts for no greater than 25.0% of Pro Forma EBITDA, in each 9.20 of the Credit Agreement. case, for the most recently ended four full fiscal quarters for which internal financial statements of the Borrower are available immediately preceding the date of determination and (c) For purposes of determining compliance with this Section 4.06, (x) a Lien need not to (iii) the Borrower shall use its commercially reasonable efforts to consummate any such be Incurred solely by reference to one category of Permitted Liens or Permitted Collateral distribution on or prior to the nine-month anniversary of the Closing Date; and Liens, as applicable, but may be Incurred under any combination of such categories (including in part under one such category and in part under any other such category and (y) (24) any Restricted Payments made in connection with the Acquisition and the in the event that a Lien (or any portion thereof) meets the criteria of one or more of such Refinancing and fees and expenses relating thereto (including, without limitation, any deferred compensation payments to existing management of Target and dividends by the shall be entitled to, in its sole discretion, divide, classify or subsequently reclassify, in whole Target that have a record date before the Closing Date, but a payment date on or after the or in part, at any time, such Lien (or any portion thereof) in any manner that complies with Closing Date). applicable. (c) Except as otherwise specified, the amount of all Restricted Payments or Permitted Investments (other than cash) shall be the fair market value on the date of such Restricted Section 4.07. Limitation on Restrictions on Distributions from Restricted Subsidiaries Payment or Permitted Investment (or, at the option of the Borrower, on the date of entry into of a commitment, contract or resolution with respect to such Restricted Payment or Permitted (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, create Investment) of the asset(s) or securities proposed to be paid, transferred or issued by the or otherwise cause or permit to exist or become effective any consensual encumbrance or Borrower or such Restricted Subsidiary, as the case may be, pursuant to such Restricted consensual restriction on the ability of any Restricted Subsidiary to: Payment or Permitted Investment and without giving effect to subsequent changes in value. The fair market value of any cash Restricted Payment or Permitted Investment shall be its (1) pay dividends or make any other distributions in cash or otherwise on its face amount, and the fair market value of any non-cash Restricted Payment or Permitted Capital Stock to the Borrower or any Restricted Subsidiary or pay any Indebtedness or other Investment or any other property, assets or securities required to be valued by this Section obligations owed to the Borrower or any Restricted Subsidiary; 4.05 shall be determined conclusively by an Officer or the Board of Directors of the Borrower acting in good faith. (2) make any loans or advances to the Borrower or any Restricted Subsidiary; or (d) For purposes of determining compliance with this Section 4.05 and the definition of (3) sell, lease or transfer any of its property or assets to the Borrower or any Restricted Subsidiary, Investment meets the criteria of more than one of the categories described in clauses (1) provided that (x) the priority of any Preferred Stock in receiving dividends or through (24) of Section liquidating distributions prior to dividends or liquidating distributions being paid on common or is permitted pursuant to Section 4.05(a), the Borrower will be entitled to classify such 16 17 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
stock and (y) the subordination of (including the application of any standstill requirements to) which such refinancing or amendment, supplement or other modification relates (as loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness determined in good faith by the Borrower); Incurred by the Borrower or any Restricted Subsidiary, or any prohibition on securing such loans or advances made to the Borrower or any Restricted Subsidiary, shall not be deemed to (6) any encumbrance or restriction: constitute such an encumbrance or restriction. (a) that restricts in a customary manner the subletting, assignment or transfer (b) Section 4.07(a) will not prohibit: of any property or asset that is subject to a lease, license or similar contract, or the assignment or transfer of any lease, license or other (1) any encumbrance or restriction pursuant to any Credit Facility or any other contract; agreement or instrument, in each case, in effect at or entered into on the Initial Funding Date and any amendments, restatements, modifications, renewals, supplements, refundings, (b) contained in mortgages, pledges or other security agreements permitted replacements or refinancings of such agreements; provided that the amendments, under this Agreement or securing Indebtedness of the Borrower or a restatements, modifications, renewals, supplements, refundings, replacements or refinancings Restricted Subsidiary permitted under this Agreement to the extent such are not materially more restrictive, taken as a whole, with respect to such dividend and other encumbrances or restrictions restrict the transfer of the property or assets payment restrictions than those contained in those agreements on the Initial Funding Date (as subject to such mortgages, pledges or other security agreements; determined in good faith by the Borrower); (c) pursuant to customary provisions restricting dispositions of real property (2) [Reserved]; interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary; or (3) encumbrances or restrictions existing under or by reason of (i) any Loan Documents, (ii) the Senior Secured Notes, (iii) any Existing Target Notes or (iv) any (d) pursuant to the terms of any license, authorization, concession or permit; Intercreditor Agreement or any Additional Intercreditor Agreement, including in each case, any related security documents, escrow arrangements or other documents related to the (7) any encumbrance or restriction pursuant to Purchase Money Obligations and foregoing; Capitalized Lease Obligations permitted under this Agreement, in each case, that impose encumbrances or restrictions on the property so acquired or any encumbrance or restriction (4) any encumbrance or restriction pursuant to an agreement or instrument of a pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the joint venture; the date on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into the Borrower or any Restricted Subsidiary, (ii) such agreement or (8) any encumbrance or restriction with respect to a Restricted Subsidiary (or any instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an of its property or assets) imposed pursuant to an agreement entered into for the direct or acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each case, other indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any such Restricted Subsidiary (or the property or assets that are subject to such restriction) portion of the funds utilized to consummate, the transaction or series of related transactions pending the closing of such sale or disposition; pursuant to which such Person became a Restricted Subsidiary or was acquired by the Borrower or was merged, consolidated or otherwise combined with or into the Borrower or (9) customary provisions in leases, licenses, joint venture agreements and other any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of similar agreements and instruments entered into in the ordinary course of business; this Section 4.07(b)(4), if another Person is the Successor Company or any Subsidiary (10) encumbrances or restrictions arising or existing by reason of applicable law or thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed any applicable rule, regulation, governmental license or order, or required by any regulatory acquired or assumed by the Borrower or any Restricted Subsidiary when such Person authority or stock exchange; becomes the Successor Company; (11) any encumbrance or restriction on cash or other deposits or net worth imposed (5) any encumbrance or restriction pursuant to an agreement or instrument by customers under agreements entered into in the ordinary course of business; effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument (12) any encumbrance or restriction pursuant to Currency Agreements, Interest referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section 4.07(b)(4) or this Section Rate Agreements or Commodity Hedging Agreements; Initial Agreement nt or other modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section (13) any encumbrance or restriction arising pursuant to an agreement or instrument 4.07(b)(4) or this Section 4.07(b)(5); provided, however, that the encumbrances and relating to any Indebtedness permitted to be Incurred subsequent to the Initial Funding Date restrictions with respect to such Restricted Subsidiary contained in any such agreement or pursuant to Section 4.04 if the encumbrances and restrictions contained in any such instrument are no less favorable in any material respect to the Lenders taken as a whole than agreement or instrument taken as a whole are not materially less favorable to the Lenders the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to 18 19 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
than (i) the encumbrances and restrictions contained in this Agreement or any Loan prepaid, repaid, purchased or redeemed; (ii) unless included in Section 4.08(b)(1)(i), to Document on the Initial Funding Date, or (ii) is customary in comparable financings (as prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Borrower or any determined in good faith by the Borrower) and where, in the case of clause (ii), the Borrower Subsidiary Guarantor, at a price of no more than 100% of the principal amount of such Pari determines at the time of issuance of such Indebtedness that such encumbrances or Passu Indebtedness plus accrued and unpaid interest to the date of such prepayment, res repayment, purchase or redemption, provided that the Borrower or such Subsidiary make principal or interest payments under the Loan Documents as and when they become Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a that is Public Debt pursuant to this clause (ii) only if the Borrower delivers a notice of payment or financial covenant relating to such Indebtedness; prepayment with respect to the Pari Ratable Share of the Term Loans in accordance with Section 2.13(a)(ii) within the time period specified by this Section 4.08(b)(1) and thereafter (14) any encumbrance or restrictions arising in connection with any Purchase complies with its obligations under Section 2.13(a)(iii); (iii) to prepay, repay, purchase or Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith redeem any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor or any determination of an Officer or the Board of Directors of the Borrower, are necessary or Indebtedness that is secured on assets which do not constitute Collateral (in each case, other advisable to effect such Qualified Receivables Financing; or than Subordinated Indebtedness of the Borrower or a Subsidiary Guarantor or Indebtedness owed to the Borrower or any Restricted Subsidiary); or (iv) to prepay Loans pursuant to (15) any encumbrance or restriction existing by reason of any Lien permitted under Section 2.12; Section 4.06. (2) to the extent the Borrower or such Restricted Subsidiary elects, to invest in or Section 4.08. Limitation on Sales of Assets and Subsidiary Stock purchase or commit to invest in or purchase Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, make by the Borrower or another Restricted Subsidiary) within 365 days from the later of (i) the any Asset Disposition unless: date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that any such reinvestment in Additional Assets made pursuant to a definitive (1) the Borrower or such Restricted Subsidiary, as the case may be, receives binding agreement or a commitment approved by the Board of Directors of the Borrower that consideration (including by way of relief from, or by any other Person assuming is executed or approved within such time will satisfy this requirement, so long as such responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market investment or commitment to invest is consummated within 180 days of such 365th day; value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the (3) to make a capital expenditure within 365 days from the later of (A) the date of Borrower, of the shares and assets subject to such Asset Disposition (including, for the such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and that any such capital expenditure made pursuant to a definitive binding agreement or a commitment approved by the Board of Directors of the Borrower that is executed or approved (2) in any such Asset Disposition, or series of related Asset Dispositions (except within such time will satisfy this requirement, so long as such investment is consummated to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the within 180 days of such 365th day; or consideration from such Asset Disposition or such series of related Asset Dispositions (excluding any consideration by way of relief from, or by any other Person assuming (4) any combination of clauses (1) (3) of Section 4.08(b), responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together with all other Asset Dispositions since the Initial Funding Date (except to the extent any such provided that, pending the final application of any such Net Available Cash in Asset Disposition was a Permitted Asset Swap) on a cumulative basis received by the accordance with clauses (1), (2), (3) or (4) of Section 4.08(b), the Borrower and the Restricted Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Available Equivalents or Temporary Cash Investments. Cash in any manner not prohibited by this Agreement. (b) After the receipt of Net Available Cash from an Asset Disposition, the Borrower or a (c) For the purposes of Section 4.08(a)(2), the following will be deemed to be cash: Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at the option of the Borrower or such Restricted Subsidiary): (1) the assumption by the transferee (or other extinguishment in connection with the transactions relating to such Asset Dispositions) of Indebtedness and any other liabilities (1) within 365 days from the later of (A) the date of such Asset Disposition and (as recorded on the balance sheet of the Borrower or any Restricted Subsidiary or in the (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such Senior Secured Indebtedness incurred under Section 4.04(b)(1); provided, however, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this balance sheet or in the footnotes thereof if such incurrence or accrual had taken place on or Section 4.08(b)(1), the Borrower or such Restricted Subsidiary will retire such Indebtedness prior to the date of such balance sheet, as determined in good faith by the Borrower) of the and will cause the related commitment (if any) (except in the case of any revolving Borrower or any Restricted Subsidiary (other than Subordinated Indebtedness of the Indebtedness) to be permanently reduced in an amount equal to the principal amount so 20 21 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
Borrower or a Subsidiary Guarantor) and the release of the Borrower or such Restricted (2) in the event such Affiliate Transaction involves an aggregate value in excess Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition; of $35 million, the terms of such transaction or series of related transactions have been approved by a resolution of the majority of the members of the Board of Directors of the (2) securities, notes or other obligations received by the Borrower or any Borrower resolving that such transaction complies with Section 4.09(a)(1). An Affiliate Restricted Subsidiary from the transferee that are converted by the Borrower or such Transaction shall be deemed to have satisfied the requirements set forth in this Section Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of 4.09(a)(2) if either (x) such Affiliate Transaction is approved by a majority of the such Asset Disposition; Disinterested Directors or (y) the Borrower or any of its Restricted Subsidiaries, as the case may be, delivers to the Administrative Agent a letter from an Independent Financial Advisor (3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted stating that such transaction is fair to the Borrower or such Restricted Subsidiary from a Subsidiary as a result of such Asset Disposition, to the extent that the Borrower and each financial point of view or stating that the terms are not materially less favorable to the other Restricted Subsidiary (as applicable) are released from any Guarantee of payment of Borrower or its relevant Restricted Subsidiary than those that would have been obtained in a such Indebtedness in connection with such Asset Disposition; comparable transaction by the Borrower or such Restricted Subsidiary with an unrelated (4) consideration consisting of Indebtedness of the Borrower or a Guarantor (other than Subordinated Indebtedness) received after the Initial Funding Date from Persons who (b) The provisions of Section 4.09(a) will not apply to: are not the Borrower or any Restricted Subsidiary; and (1) any Restricted Payment permitted to be made pursuant to Section 4.05, any (5) any Designated Non-Cash Consideration received by the Borrower or any Permitted Payments (other than pursuant to Section 4.05(b)(9)(b) or Section 4.05(b)(20) or Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken any Permitted Investment (other than as defined in sub-clauses (a)(ii) or (b) of the definition together with all other Designated Non-Cash Consideration received pursuant to this Section of Permitted Investments); 4.08 that is at that time outstanding, not to exceed (at the time of the receipt of such Designated Non- (2) any issuance or sale of Capital Stock, options, other equity-related interests or agreeing to such Asset Disposition) the greater of $55 million and 25% of Pro Forma other securities, or other payments, awards or grants in cash, securities or otherwise pursuant EBITDA for the most recently ended four full fiscal quarters for which internal financial to, or the funding of, or entering into, or maintenance of, any employment, consulting, statements of the Borrower are available immediately preceding the date of determination collective bargaining or benefit plan, program, agreement or arrangement, related trust or (with the fair market value of each item of Designated Non-Cash Consideration being other similar agreement and other compensation arrangements, options, warrants or other measured at the time received or, at the option of the Borrower, on the date of contractually rights to purchase Capital Stock of the Borrower, any Restricted Subsidiary or any Parent, agreeing to the relevant Asset Disposition and without giving effect to subsequent changes in restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation value). insurance, deferred compensation, severance, retirement, savings or similar plans, programs Section 4.09. Limitation on Affiliate Transactions or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors of the Borrower, in each case in the ordinary (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, course of business; directly or indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange of any property or the rendering of any (3) any Management Advances and any waiver or transaction with respect thereto; service) with any Affiliate of the Borrower (any such transaction or series of related Affiliate Transactions of the (4) any transaction between or among the Borrower and any Restricted Subsidiary greater of $20 million and 10.0% of Pro Forma EBITDA for the most recently ended four full (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or fiscal quarters for which internal financial statements of the Borrower are available among the Borrower, Restricted Subsidiaries or any Receivables Entity; immediately preceding the date of determination unless: (5) the payment of reasonable fees and reimbursement of expenses to, and (1) the terms of such Affiliate Transaction taken as a whole are not materially less customary indemnities and employee benefit and pension expenses provided on behalf of, favorable to the Borrower or such Restricted Subsidiary, as the case may be, than those that directors, officers, consultants or employees of the Borrower, any Restricted Subsidiary or could be obtained in a comparable transaction at the time of such transaction or the execution any Parent (whether directly or indirectly and including through any Person owned or -length dealings with a Person who is controlled by any of such directors, officers or employees); not such an Affiliate, or, if there are no comparable transactions involving non-Affiliates to apply for comparative purposes, the transaction is otherwise on terms that, taken as a whole, (6) the Transactions and any Permitted Reorganization; provided that any the Borrower has conclusively determined in good faith to be fair to the Borrower or such transactions with the SFS Business that are not in connection with the SFS Business Transfer Restricted Subsidiary; and shall not be permitted by this clause (6); 22 23 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(7) execution, delivery and performance of any Tax Sharing Agreement or the (13) any participation in a rights offer or public tender or exchange offers for formation and maintenance of any consolidated group for tax, accounting or management securities or debt instruments issued by the Borrower or any of its Subsidiaries that are purposes in the ordinary course of business; price or exchange ratio, as the case may be, to all holders accepting such rights, tender or exchange offer; (8) transactions with customers, clients, suppliers or purchasers or sellers of goods or services and Associates, in each case in the ordinary course of business (including, without (14) transactions between the Borrower or any Restricted Subsidiary and any other limitation, pursuant to joint venture arrangements), which are fair to the Borrower or the Person that would constitute an Affiliate Transaction solely because a director of such other relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or an Person is also a director of the Borrower or any Parent; provided, however, that such director officer of the Borrower or the relevant Restricted Subsidiary, or are on terms no less abstains from voting as a director of the Borrower or such Parent, as the case may be, at any favorable than those that could reasonably have been obtained at such time from an board meeting approving such transaction on any matter including such other Person; unaffiliated party; (15) payments to and from, and transactions with, any joint ventures entered into in (9) any transaction in the ordinary course of business between or among the the ordinary course of business or consistent with past practices (including, without Borrower or any Restricted Subsidiary and any Affiliate of the Borrower or an Associate or limitation, any cash management activities related thereto); similar entity (in each case, other than an Unrestricted Subsidiary) that would constitute an Affiliate Transaction solely because the Borrower or a Restricted Subsidiary or any Affiliate (16) commercial contracts (excluding the Permitted Sale and Leaseback of the Borrower or a Restricted Subsidiary or any Affiliate of any Permitted Holder owns an Transactions but including franchising agreements, office space and other real estate lease equity interest in or otherwise controls such Affiliate, Associate or similar entity; agreements, business services related agreements or other similar arrangements) between an (10) (a) issuances or sales of Capital Stock (other than Disqualified Stock or length terms or on a basis that senior management of the Borrower reasonably believes Designated Preference Shares) of the Borrower or options, warrants or other rights to acquire allocates costs fairly; such Capital Stock or Subordinated Shareholder Funding; provided that the interest rate and other financial terms of such Subordinated Shareholder Funding are approved by a majority (17) (i) transactions with Affiliates solely in their capacity as holders of of the members of the Board of Directors of the Borrower in their reasonable determination Indebtedness or Equity Interests of the Borrower, Parent or any of its Subsidiaries or and (b) any amendment, waiver or other transaction with respect to any Subordinated Subordinated Shareholder Debt (and payment of reasonable out-of-pocket expenses incurred Shareholder Funding in compliance with the other provisions of this Agreement, any by such Permitted Holders in connection therewith) so long as the opportunity to participate Intercreditor Agreement or any Additional Intercreditor Agreement, as applicable; in such transaction is offered by the Borrower, Parent or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments to Permitted (11) without duplication in respect of payments made pursuant to the definition of Holders and holders of shares of Capital Stock of BidFair Management, LP in respect of Parent Expenses, (a) payments by the Borrower or any Restricted Subsidiary to any Permitted securities or Indebtedness of the Borrower or any Restricted Subsidiary contemplated in the Holder (whether directly or indirectly, including through any Parent) of annual management, foregoing clause (i) or that were acquired from Persons other than the Restricted Subsidiaries, consulting, monitoring or advisory fees and related expenses in an aggregate amount not to in each case, in accordance with the terms of such securities or Indebtedness; and exceed an amount equal to the greater of $3 million or 1.5% of Pro Forma EBITDA for the most recently ended four full fiscal quarters for which internal financial statements of the (18) the Permitted Sale and Leaseback Transactions. Borrower are available immediately preceding the date of calculation per annum (with unused amounts in any calendar year being carried over to the succeeding calendar years) Section 4.10. Reports and; (b) customary payments by the Borrower or any Restricted Subsidiary to any Permitted Holder (whether directly or indirectly, including through any Parent) for financial advisory, (a) For so long as the Loans are outstanding, the Borrower will provide to the financing, underwriting or placement services or in respect of other investment banking Administrative Agent the following reports: activities, including in connection with acquisitions or divestitures, which payments in (1) within 120 days after the end of the (or, if the Borrower elects to respect of this Section 4.09(b)(11) are approved by a majority of the Board of Directors of the satisfy its obligation under this Section 4.10(a)(1) by delivering the annual reports of a Parent in Borrower in good faith; and (c) payments of all fees and expenses related to the Transactions accordance with the second succeeding paragraph of this Section 4.10(a), of such Parent) fiscal and any Permitted Reorganization; year beginning with the fiscal year ending December 31, 2019, annual reports containing the (12) any transaction effected as part of a Qualified Receivables Financing, and following information: (a) audited consolidated balance sheet of the Borrower as of the end of other Investments in a Receivables Entity consisting of cash or Securitization Assets and the most recent fiscal year (and comparative information as of the end of the prior fiscal year) execution, delivery and performance of any Servicer Agreement; in connection with the SFS and audited consolidated income statements and statements of cash flow of the Borrower for Business Transfer, provided that for the avoidance of doubt any Servicer Agreement entered the most recent fiscal year (and comparative information as of the end of the prior fiscal year) into by the Borrower or a Restricted Subsidiary with the SFS Business other than in including complete footnotes to such financial statements and the report of the independent connection with the SFS Business Transfer shall not be permitted by this clause (12); auditors on the financial statements; (b) unaudited pro forma income statement information and balance sheet information of the Borrower (which, for the avoidance of doubt, shall not 24 25 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
include the provision of a full income statement or balance sheet to the extent not reasonably to the extent available without unreasonable expense and in the case pro forma financial available), together with explanatory footnotes, for (i) any acquisition or disposition by the information is not provided, the Borrower will provide, in the case of a material acquisition to Borrower or a Restricted Subsidiary that, individually or in the aggregate when considered the extent available to the Borrower or a Restricted Subsidiary without unreasonable expense, with all other acquisitions or dispositions that have occurred since the beginning of the most financial statements of the acquired company for the most recent fiscal year, and in the case recently completed fiscal year as to which such annual report relates, represent greater than of a material disposition, financial statements of the business or assets comprising the 20% of the consolidated revenues, EBITDA and/or adjusted operating cash flow, or assets of disposition perimeter for the most recent fiscal year which, in each case, may be unaudited; the Borrower on a pro forma consolidated basis or (ii) recapitalizations by the Borrower or a (c) a summary operating and financial review of the unaudited financial statements, including Restricted Subsidiary, in each case, that have occurred during the most recently completed a discussion of revenues, EBITDA and/or adjusted operating cash flow, capital expenditures, fiscal year as to which such annual report relates (unless such pro forma information has operating cash flow and material changes in liquidity and capital resources, and a discussion been provided in a prior report pursuant to Section 4.10(a)(2) or Section 4.10(a)(3)); provided of material changes not in the ordinary course of business in commitments and contingencies that such pro forma financial information will be provided only to the extent not provided in a since the most recent report (to the extent not previously reported pursuant to Section previous report pursuant to Section 4.10(a)(2) or Section 4.10(a)(3) below and to the extent 4.10(a)(3) below); and (d) material recent developments (to the extent not previously reported available without unreasonable expense, and in the case pro forma financial information is pursuant to Section 4.10(a)(3) below); and not provided, the Borrower will provide, in the case of a material acquisition, to the extent available to the Borrower or a Restricted Subsidiary without unreasonable expense, financial (3) promptly after the occurrence of such event, information with respect to (a) statements of the acquired company for the most recent fiscal year, and in the case of a any change in the independent public accountants of the Borrower, (b) any material material disposition, financial statements of the business or assets comprising the disposition acquisition, disposal, merger or similar transaction or (c) any development determined by an perimeter for the most recent fiscal year which, in each case, may be unaudited; (c) an Officer of the Borrower to be material to the business of the Borrower and its Restricted operating and financial review of the audited financial statements, including a discussion of Subsidiaries (taken as a whole). the results of operations, financial condition, and liquidity and capital resources of the Borrower, and a discussion of material commitments and contingencies and critical For the avoidance of doubt, in no event will any reports provided pursuant to this accounting policies; (d) description of the business, management and shareholders of the Section 4.10(a): Borrower (to the extent not previously reported pursuant to Section 4.10(a)(2) or Section 4.10(a)(3) below), all material affiliate transactions and a description of all material (1) be required to comply with: contractual arrangements, including material debt instruments; and (e) a description of (a) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx material risk factors and material recent developments (to the extent not previously reported Act of 2002, or related Items 307 and 308 of Regulation S-K under the pursuant to Section 4.10(a)(2) or Section 4.10(a)(3) below); Regulation S-K (2) within 60 days following the end of the first three fiscal quarters in each fiscal (b) Rule 3-10 of Regulation S-X under the Securities Act year of the Borrower (or, if the Borrower elects to satisfy its obligation under this Section Regulation S-X 4.10(a)(2) by delivering the quarterly reports of a Parent in accordance with the second Borrower, the Guarantors or other Subsidiaries the shares of which succeeding paragraph of this Section 4.10(a), of such Parent) beginning with the fiscal quarter may be pledged to secure the Obligations that would be required under ending September 30, 2019, all quarterly reports of the Borrower containing, to the extent Section 3-16 of Regulation S-X; applicable: (a) an unaudited condensed consolidated balance sheet as of the end of such quarter and unaudited condensed consolidated statements of income and cash flow for the (c) Rule 11-01 of Regulation S-X, to give pro forma effect to the most recent quarter year-to-date period ending on the date of the unaudited condensed Transactions, or contain all purchase accounting adjustments relating balance sheet, and the comparable prior year periods, together with condensed footnote to the Transactions; disclosure (provided that if the Acquisition is completed after September 30, 2019, the Borrower shall provide the unaudited condensed consolidated financial statements of the (d) Regulation G under the Exchange Act or Item 10(e) of Target for such period unless such financial statements have been filed with the SEC); (b) Regulation S-K with respect to any non-GAAP financial measures beginning with the fiscal quarter ending March 31, 2020, unaudited pro forma income contained therein; or statement information and balance sheet information (which, for the avoidance of doubt, shall not include the provision of a full income statement or balance sheet to the extent not (2) be required to include trade secrets and other confidential information reasonably available), together with explanatory footnotes, for any acquisition or disposition that is competitively sensitive in the good faith and reasonable by the Borrower or a Restricted Subsidiary that, individually or in the aggregate when determination of the Borrower. considered with all other acquisitions or dispositions that have occurred since the beginning of the relevant quarter, represent greater than 20% of the consolidated revenues, EBITDA Notwithstanding the foregoing, the Borrower may satisfy its obligations under and/or adjusted operating cash flow, or assets of the Borrower on a pro forma consolidated clauses (1), (2) and (3) of Section 4.10(a) by delivering the corresponding annual, quarterly basis (unless such pro forma information has been provided in a prior report pursuant to or other reports of a Parent; provided that to the extent that the Borrower is not the reporting Section 4.10(a)(3)); provided that such pro forma financial information will be provided only entity and material differences exist between the management, business, assets, shareholding 26 27 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
The Borrower will not, and will not permit any of its Restricted Subsidiaries to, Covenant), as applicable, or testing baskets set forth in this Annex I of the Credit Agreement engage in any business other than a Similar Business, except to such extent as would not (including baskets measured as a percentage of Pro Forma EBITDA) in connection with (x) be material to the Borrower and the Restricted Subsidiaries, taken as a whole. the Incurrence of any Indebtedness or (y) the Incurrence of any Lien, the Borrower may elect, in its sole discretion, to treat all or any portion of the committed amount of any Indebtedness Section 4.15. Additional Guarantors is to be Incurred (or any commitment in respect thereof) or secured by such Lien, as the case (a) [Reserved]. may be (any such amount elected until revo Elected Amount as being Incurred as of such election date and (i) any subsequent borrowing or re-borrowing (b) Loan Guarantees existing on or granted after the Effective Date pursuant to of Indebtedness under such commitment (so long as the total amount under such Section 5.14 of the Credit Agreement shall be released as set forth in Section 12 of the Indebtedness does not exceed the Elected Amount) shall not be deemed, for purposes of this Facility Guaranty. calculation, to be an Incurrence of additional Indebtedness or an additional Lien at such (c) Notwithstanding the foregoing, the Borrower shall not be obligated (i) to cause an subsequent time, (ii) the Borrower may revoke an election of an Elected Amount at any time Excluded Subsidiary to provide a Loan Guarantee (for so long as such entity is an after the election date, (iii) for purposes of all subsequent calculations of the Consolidated Excluded Subsidiary), nor (ii) to cause any Restricted Subsidiary to provide a Loan Net Leverage Ratio or the Consolidated Net Senior Secured Leverage Ratio, as applicable, Guarantee to the extent and for so long as the Incurrence of such Guarantee pursuant to the Elected Amount (if any) shall be deemed to be outstanding (unless revoked in accordance this clause (ii) could reasonably be expected to give rise to or result in: (1) any violation with clause (ii)), whether or not such amount is actually outstanding, so long as the applicable of applicable law or regulation; (2) any liability for the officers, directors or (except in commitment remains outstanding and (iv) for the purpose of Section 4.04(b) (8), Section the case of a Restricted Subsidiary that is a partnership) shareholders of such Restricted 4.04(b)(16) and clause (dd) of the definition of Permitted Liens, solely to the extent that the Subsidiary (or, in the case of a Restricted Subsidiary that is a partnership, directors or Elected Amount has been Incurred in reliance thereof (and has not be reclassified), the shareholders of the partners of such partnership); (3) any cost, expense, liability or Elected Amount (if any) shall be deemed to be outstanding under such provisions (unless obligation (including with respect to any Taxes) other than reasonable out-of-pocket revoked in accordance with clause (ii)), whether or not such amount is actually outstanding, expenses and other than reasonable expenses incurred in connection with any so long as the applicable commitment remains outstanding. governmental or regulatory filings required as a result of, or any measures pursuant to this Section 4.15(c)(1) undertaken in connection with, such Guarantee, which in any case Section 4.19. Delaware LLC Divisions under any of clauses (1), (2) and (3) of Section 4.15(c) cannot be avoided through For purposes of this Annex I and Annex II, in connection with any division or plan of measures reasonably available to the Borrower or such Restricted Subsidiary; or (4) such division under Delaware law (or any comparable event un Restricted Subsidiary is prohibited from Incurring such Guarantee by the terms of any (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation Indebtedness of such Restricted Subsidiary existing on the Initial Funding Date (or if or liability of a different Person, then it shall be deemed to have been transferred from the later, on the date such entity becomes a Restricted Subsidiary) that is not prepayable original Person to the subsequent Person, and (b) if any new Person comes into existence, without a prepayment premium (in each case, other than Indebtedness Incurred to such new Person shall be deemed to have been organized on the first date of its existence by provide all or any portion of the funds utilized to consummate the transaction or series of the holders of its Capital Stock at such time. related transactions pursuant to which such Person became a Restricted Subsidiary); provided that this Section 4.15(c)(4) applies only for so long as such prepayment Section 4.20. Limitation on Parent Guarantor Activities premium applies to such Indebtedness. (1) The Parent Guarantor will not engage in any business activity or undertake any other Section 4.16. [Reserved] activity, except any such activity: Section 4.17. Restrictions on Licensing Activities (a) reasonably relating to the offering, sale, issuance, Incurrence, servicing, purchase, The Borrower will not, and will not permit any of its Restricted Subsidiaries to, redemption, amendment, exchange, refinancing or retirement of or Investment in the Loans, the Senior Secured Notes or other Indebtedness (including any Refinancing Indebtedness in tual property, except for the Permitted respect of any of the foregoing) or borrowing directly or indirectly from a Parent, the Licensing Activities. Borrower or any Restricted Subsidiary); Section 4.18. Reserved Indebtedness (b) undertaken with the purpose of, directly or indirectly, fulfilling its obligations or exercising its rights under the Loans, the Senior Secured Notes or other Indebtedness, For purposes of determining compliance with any provision of this Agreement which Hedging Obligations or any other obligations (including any Refinancing Indebtedness in requires the calculation of the Consolidated Net Senior Secured Leverage Ratio or the respect of any of the foregoing); Consolidated Net Leverage Ratio (other than for purposes of calculating the Applicable Revolving Commitment Fee Percentage or determining compliance with the Financial (c) directly related or reasonably incidental to the establishment and/or maintenance of 32 33 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
provided that the sale, lease, transfer, issuance or other disposition of all or substantially all of (i) the granting of Liens not prohibited by Section 4.06; the assets of the Borrower (or any successor company) and its Restricted Subsidiaries taken as a whole will be governed by the provisions of Section 7.01(i) of the Credit Agreement and (j) a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases, Article V of Annex I and not by the provisions of Section 4.08 of Annex I. Notwithstanding transfers, issuances or dispositions that are part of a common plan, of receivables or the preceding provisions of this definition, the following items shall not be deemed to be related assets in connection with the compromise, settlement or collection thereof in Asset Dispositions: the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements; (a) a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases, transfers, issuances or dispositions that are part of a common plan, by a Restricted (k) subject to Section 4.16, the licensing or sublicensing of intellectual property or other Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to a general intangibles and licenses, sublicenses, leases, subleases of other property, in Restricted Subsidiary; each case, in the ordinary course of business; (b) a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases, (l) foreclosure, condemnation, eminent domain or any similar action with respect to any transfers, issuances or dispositions that are part of a common plan, of cash, Cash property or other assets; Equivalents, Temporary Cash Investments or Investment Grade Securities; (m) the sale or discount (with or without recourse, and on customary or commercially (c) a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases, reasonable terms) of tax receivables and factoring accounts receivable or notes transfers, issuances or dispositions that are part of a common plan, of inventory, receivable arising in the ordinary course of business, or the conversion or exchange of consumer equipment, trading stock or other assets in the ordinary course of business; accounts receivable for notes receivable; (d) a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases, (n) sales, transfers or dispositions of receivables and related assets in connection with any transfers, issuances or dispositions that are part of a common plan, of obsolete, Qualified Receivables Financing or any factoring transaction or in the ordinary course surplus or worn out equipment or other assets or equipment or other similar assets that of business, and Investments in a Receivables Entity consisting of cash or are no longer useful in the conduct of the business (as determined in good faith by the Securitization Assets; Borrower) of the Borrower and its Restricted Subsidiaries; (o) any sale, lease, transfer, issuance or other disposition, or any series of related sales, (e) transactions permitted under Article V of Annex I (other than as permitted under leases, transfers, issuances or dispositions that are part of a common plan, of Capital Section 5.02(a)(3)(c) or a transaction that constitutes a Change of Control; Stock, Indebtedness or other securities of an Unrestricted Subsidiary; (f) an issuance of Capital Stock by a Restricted Subsidiary to the Borrower or to another (p) any sale, lease, transfer, issuance or other disposition, or any series of related sales, Restricted Subsidiary or as part of or pursuant to an equity incentive or compensation leases, transfers, issuances or dispositions that are part of a common plan, of Capital plan approved by the Board of Directors of the Borrower; Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Borrower or a Restricted Subsidiary) from whom such (g) any sale, lease, transfer, issuance or other disposition, or any series of related sales, Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary leases, transfers, issuances or dispositions that are part of a common plan, of Capital acquired its business and assets (having been newly formed in connection with such Stock, properties or assets in a single transaction or series of related transactions with acquisition), made as part of such acquisition and in each case comprising all or a a fair market value (as determined in good faith by the Borrower at the time of such portion of the consideration in respect of such sale or acquisition; sale, lease, transfer, issuance or other disposition or, at the option of the Borrower, on the date of contractually agreeing to such sale, lease, transfer, issuance or other (q) any surrender or waiver of contract rights or the settlement, release or surrender of disposition) not to exceed the greater of $20 million and 10.0% of Pro Forma contract, tort or other claims of any kind; EBITDA for the most recently four full fiscal quarters for which internal financial statements of the Borrower are available immediately preceding the date of (r) any sale, lease, transfer, issuance or other disposition, or any series of related sales, determination; leases, transfers, issuances or dispositions that are part of a common plan, of assets to a Person who is providing services related to such assets, the provision of which have (h) (i) any Restricted Payment that is permitted to be made under Section 4.05, any been or are to be outsourced by the Borrower or any Restricted Subsidiary to such transaction specifically excluded from the definition of Restricted Payment and the Person; provided, however, that the Board of Directors of the Borrower shall certify making of any Permitted Payment and Permitted Investment and (ii) solely for the that in the opinion of the Board of Directors, the outsourcing transaction will be purposes of Section 4.08(b), a disposition, the proceeds of which are used to make economically beneficial to the Borrower and the Restricted Subsidiaries (considered such Restricted Payments permitted to be made under Section 4.05, Permitted as a whole); Payments or Permitted Investments; 38 39 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(s) any sale, lease, transfer, issuance or other disposition, or any series of related sales, In the event that a transaction (or a portion thereof) meets the criteria of more than one of the leases, transfers, issuances or dispositions that are part of a common plan, with respect categories described in clauses (a) through (aa) above or such transaction (or a portion to property built, owned or otherwise acquired by the Borrower or any Restricted thereof) would also be a permitted Restricted Payment or Permitted Investment, the Subsidiary pursuant to customary sale and lease-back transactions, asset Borrower, in its sole discretion, will be entitled to divide and classify such transaction (or a securitizations and other similar financings permitted by this Agreement; provided portion thereof), and from time to time reclassify such transaction (or a portion thereof), into that, with respect to the Real Estate Portfolio Transfer (including the Permitted Sale one or more such categories and/or one or more of the types of permitted Restricted and Leaseback Transactions), the Borrower shall use its commercially reasonable Payments or Permitted Investments. efforts to consummate such transactions on or prior to the nine-month anniversary of the Closing Date; Associate ngaged in a Similar Business of which the Borrower or a Restricted Subsidiary are the legal and beneficial owners of between 20% and 50% of all (t) any sale, lease, transfer, conveyance or other disposition in one or a series of related outstanding Voting Stock and (ii) any joint venture engaged in a Similar Business entered transactions of any assets (including Capital Stock) of the Borrower and its into by the Borrower or any Restricted Subsidiary. Subsidiaries or of any Person that becomes a Restricted Subsidiary (i) acquired in a transaction permitted under this Agreement, which assets are not used or useful in the Beneficial Owner -3 and Rule 13d-5 core or principal business of the Borrower and its Restricted Subsidiaries, or (ii) made under the Exchange Act, except that in calculating the beneficial ownership of any particular in connection with the approval of any applicable antitrust authority or pursuant to Competition Laws or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any acquisition permitted under this Agreement; acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisa (u) dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is purchased within 270 days thereof or (ii) an amount equal to the Net Available Cash of such disposition Board of Directors are applied to the purchase price of such replacement property (which replacement managers, as applicable, of the corporation, or any duly authorized committee thereof; (2) property is purchased within 270 days thereof) ; with respect to any partnership, the board of directors or other governing body of the general partner of the partnership or any duly authorized committee thereof; and (3) with respect to (v) the lapse, abandonment or other disposition of intellectual property rights in the any other Person, the board or any duly authorized committee of such Person serving a ordinary course of business, which in the reasonable good faith determination of the similar function. Unless otherwise specified in this Agreement, whenever any provision of Borrower are no longer commercially reasonable to maintain or are not material to the this Agreement requires any action or determination to be made by, or any approval of, a conduct of the business of the Borrower and its Restricted Subsidiaries taken as a Board of Directors, such action, determination or approval shall be deemed to have been whole; taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a (w) [Reserved]; formal board approval); provided that any action required to be taken under this Agreement by the Board of Directors of the Borrower can, in the alternative, at the option of the (x) to the extent allowable under Section 1031 of the Code, or any comparable or Borrower, be taken by the Parent Guarantor and its successors or any Subsidiary thereof that successor provision, any exchange of like property (excluding any boot thereon) for is a Parent of the Borrower. use in a Similar Business; Capital Stock (y) sales, transfers and other dispositions of Investments in joint ventures to the extent warrants or options for, participation or other equivalents of, or partnership or other interests required by, or made pursuant to, customary buy/sell arrangements between the joint in (however designated), equity of such Person, including any Preferred Stock, but excluding venture parties set forth in joint venture arrangements and similar binding any debt securities convertible into such equity. arrangements; Capitalized Lease Obligations (z) contractual arrangements under long-term contracts with customers entered into by accounted for as a capitalized lease for financial reporting purposes on the basis of GAAP. the Borrower or a Restricted Subsidiary in the ordinary course of business which are For the avoidance of doubt, operating leases will not be deemed Capitalized Lease treated as sales for accounting purposes; provided that there is no transfer of title in Obligations. connection with such contractual arrangement; and Cash Equivalents (aa) a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases, transfers, issuances or dispositions in connection with the Transactions to the extent (a) securities issued or directly and fully Guaranteed or insured by the United States described in the Offering Memorandum or any Permitted Reorganization. Government, Canada, the United Kingdom, Switzerland or any member state of the European Union, in each case, any agency or instrumentality of thereof (provided that 40 41 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
the full faith and credit of such country or such member state is pledged in support CFC Holdco thereof), having maturities of not more than two years from the date of acquisition; and/or indebtedness of, each as determined for U.S. federal income tax purposes, one or more Foreign Subsidiaries that are CFCs, including the indirect ownership of such equity interests (b) certificates of deposit, time deposits, eurodollar time deposits, overnight bank or indebtedness through one or more CFC Holdcos that have no other material assets. acceptances having maturities of not more than one year from the date of acquisition thereof issued by a bank or trust company (a) whose commercial Change of Control - - - (a) the consummation of any transaction (including, without limitation, any merger or time neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) or (b) (in the event that such term is used in Section 13(d)(3) of the Exchange Act)) other than one or more bank or trust company does not have commercial paper which is rated) having Permitted Holders (or a group controlled by one or more Permitted Holders) becomes combined capital and surplus in excess of $500 million; the Beneficial Owner, directly or indirectly, of more than 50% of the issued and outstanding Voting Stock of the Administrative Borrower (or any Successor (c) repurchase obligations with a term of not more than 30 days for underlying securities of Company) or Subsidiary Revolver Borrower (or any Successor Company), measured the types described in clauses (a) and (b) above entered into with any bank meeting by voting power rather than number of shares; the qualifications specified in clause (b) above; (b) following the first Public Offering by an IPO Entity, during any period of two (d) commer - consecutive years, individuals who at the beginning of such period constituted the equivalent thereof by - - majority of the directors (excluding any employee representatives, if any) on the equivalent thereof by Fitch or carrying an equivalent rating by a Nationally Recognized Board of Directors of such IPO Entity (together with any new directors whose Statistical Rating Organization, if both of the two named rating agencies cease election by the majority of such directors on such Board of Directors of the IPO publishing ratings of investments or, if no rating is available in respect of the Entity or whose nomination for election by shareholders of the IPO Entity, as commercial paper, the issuer of which has an equivalent rating in respect of its long- applicable, was approved by a vote of the majority of such directors on the Board of term debt, and in any case maturing within one year after the date of acquisition Directors of the IPO Entity then still in office who were either directors at the thereof; beginning of such period or whose election or nomination for election was previously so approved) ceased for any reason to constitute the majority of the directors (e) readily marketable direct obligations issued by any state of the United States of (excluding any employee representatives, if any) on the Board of Directors of such America, the United Kingdom, Switzerland, Canada, any member of the European IPO Entity, then in office; or Union or any political subdivision thereof, in each case, having one of the two highest (or, if at the time, (c) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than neither is issuing comparable ratings, then a comparable rating of another by way of merger, consolidation or other business combination transaction), in one or Nationally Recognized Statistical Rating Organization) with maturities of not more a series of related transactions, of all or substantially all of the assets of the Borrower than two years from the date of acquisition; (or any Successor Company) and its Restricted Subsidiaries or Subsidiary Revolver Borrower (or any Successor Company) and its Restricted Subsidiaries, taken as a (f) - - f at Holder (or a group controlled by one or more Permitted Holders). the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) with maturities of 12 months Commodity Hedging Agreements or less from the date of acquisition; contract, commodity futures or forward contract, commodities option contract or other similar contract (including commodities derivative agreements or arrangements), to which (g) bills of exchange issued in the United States, Canada, a member state of the European such Person is a party or a beneficiary. Union, Switzerland or the United Kingdom, eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent); and Competition Laws antitrust, competition or trade regulation statutes, rules, regulations, orders, decrees, (h) interests in any investment company, money market or enhanced high yield fund administrative and judicial doctrines and other laws that are designed or intended to prohibit, which invests 95% or more of its assets in instruments of the type specified in restrict or regulate actions or transactions having the purpose or effect of monopolization or clauses (a) through (g) above. restraint of trade or lessening of competition through merger or acquisition or effectuating foreign investment. CFC of Section 957(a) of the Internal Revenue Code of 1986, as amended. Compliance Certificate a Compliance Certificate substantially in the form of Exhibit J to this Agreement. 42 43 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
Consolidated EBITDA solidated Net (j) x) any loss from discontinued operations (but if such operations are classified as Income for such period less the aggregate amount of lease payments during such period under discontinued due to the fact that they are subject to an agreement to dispose of such the lease-back arrangements entered into in connection with the Permitted Sale and operations, only when and to the extent such operations are actually disposed of), Leaseback Transactions (for the avoidance of doubt, for the purposes of this definition of reduced by (y) any income from discontinued operations (but if such operations are Consolidated EBITDA, the treatment of such payments under GAAP shall be disregarded), classified as discontinued due to the fact that they are subject to an agreement to plus the following to the extent deducted in calculating such Consolidated Net Income: dispose of such operations, only when and to the extent such operations are actually disposed of); and (a) Consolidated Interest Expense and Receivables Fees; (k) to the extent not already otherwise included herein, adjustments and add-backs of the (b) Consolidated Income Taxes; included in the Offering Memorandum. (c) consolidated depreciation expense; Consolidated Income Taxes (d) consolidated amortization and impairment expense; based on income, profits or capital of the Borrower and the Restricted Subsidiaries whether or not paid, estimated, accrued or required to be remitted to any governmental authority. (e) Parent Expenses of a Parent; Consolidated Interest Expense (f) any expenses, charges or other costs related to any Equity Offering (including of a basis of GAAP), the consolidated net interest income/expense of the Borrower and the Parent), Investment, acquisition (including amounts paid in connection with the Restricted Subsidiaries, whether paid or accrued, plus or including (without duplication) any acquisition or retention of one or more individuals comprising part of a management interest, costs and charges consisting of: team retained to manage the acquired business; provided that such payments are made in connection with such acquisition and are consistent with the customary practice in (a) interest expense attributable to Capitalized Lease Obligations (excluding any interest the industry at the time of such acquisition), disposition, recapitalization or the expense attributable to any lease-back arrangements entered into in connection with Incurrence of any Indebtedness permitted by this Agreement (whether or not the Permitted Sale and Leaseback Transactions); successful) (including any such fees, expenses or charges related to the Transactions (including of a Parent), in each case, as determined in good faith by the Borrower); (b) amortization of debt discount, but excluding amortization of debt issuance costs, fees and expenses and the expensing of any bridge commitment or other financing fees (g) any minority interest expense (whether paid or not) consisting of income attributable and excluding any expense from the discounting of any Indebtedness in connection to minority equity interests of third parties in such period or any prior period or any with the applications of purchase accounting in connection with an acquisition net earnings, income or share of profit of any Associates, associated company or (including the Transactions); undertaking; (c) non-cash interest expense; (h) the amount of management, monitoring, consultancy and advisory fees and related expenses or any payments for financial advisory, financing, underwriting or (d) dividends or other distributions in respect of all Disqualified Stock of the Borrower placement services or any payments pursuant to franchising agreements, business and all Preferred Stock of any Restricted Subsidiary, to the extent held by Persons service related agreements or other similar arrangements paid in such period (or other than the Borrower or a Subsidiary of the Borrower; accruals relating to such fees and related expenses) to any Permitted Holder (whether directly or indirectly, through any Parent) to the extent permitted by Section 4.09; (e) the consolidated interest expense that was capitalized during such period (without provided that any payments for such fees and related expense shall not be included in duplication); Consolidated EBITDA for any period to the extent they were accrued for in such period or any prior period and added back to Consolidated EBITDA in such period or (f) net payments and receipts (if any) pursuant to Hedging Obligations (other than any such prior period; Currency Agreements) (excluding unrealized xxxx-to-market gains and losses attributable to Hedging Obligations (other than Currency Agreements)); (i) other non-cash charges, write-downs or items reducing Consolidated Net Income (excluding any such non-cash charge, write-down or item to the extent it represents an (g) any interest actually paid by the Borrower or any Restricted Subsidiary on accrual of or reserve for cash charges in any future period) or other non-cash items Indebtedness of another Person that is guaranteed by the Borrower or any Restricted classified by the Borrower as special items less other non-cash items of income Subsidiary or secured by a Lien on assets of the Borrower or any Restricted increasing Consolidated Net Income (other than any non-cash items increasing such Subsidiary; and Consolidated Net Income pursuant to clauses (a) through (m) of the definition of Consolidated Net Income and excluding any such non-cash item of income to the extent it represents a receipt of cash in any future period); 44 45 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(h) premiums, penalties, annual agency fees, penalties for failure to comply with dividend or other distribution (subject, in the case of a dividend to another Restricted registration obligations (if applicable) and any amendment fees, in each case, related Subsidiary, to the limitation contained in this clause); to any Indebtedness of the Borrower or any Restricted Subsidiaries. (c) any net gain (or loss) realized upon the sale, abandonment or other disposition of any Notwithstanding any of the foregoing, Consolidated Interest Expense shall not include asset or disposed operations of the Borrower or any Restricted Subsidiary (including (i) any interest accrued, capitalized or paid in respect of Subordinated Shareholder pursuant to any sale/ leaseback transaction) which is not sold or otherwise disposed of Funding, (ii) any commissions, discounts, yield and other fees and charges related to a in the ordinary course of business (as determined in good faith by an Officer of the Qualified Receivables Financing, (iii) any payments on any operating leases, Borrower) or returned surplus assets of any Pension Plan; including without limitation any payments on any lease, concession or license of property (or Guarantee thereof) which would be considered an operating lease under (d) any extraordinary, exceptional, unusual or nonrecurring gain, loss, charge or expense GAAP, (iv) net payments and receipts (if any) pursuant to Currency Agreements or any charges, expenses or reserves in respect of any restructuring, redundancy or (including unrealized xxxx-to-market gains and losses attributable to Hedging severance or any expenses, charges, reserves, gains or other costs related to the Obligations), and (v) any pension liability interest costs. Transactions; and, to the extent not otherwise included in this clause (d): recruiting, retention and relocation costs; signing bonuses and related expenses and one-time Consolidated Net Income Borrower and compensation charges; curtailments or modifications to pension and post-retirement the Restricted Subsidiaries determined on a consolidated basis on the basis of GAAP; employee benefit plans transaction and refinancing bonuses and special bonuses paid provided, however, that there will not be included in such Consolidated Net Income: in connection with dividends and distributions to equity holders; start-up, transition, strategic initiative (including any multi-year strategic initiative) and integration costs, (a) any net income (loss) of any Person if such Person is not a Restricted Subsidiary, charges or expenses; costs, charges and expenses related to the start-up, pre-opening, except that the Borrower equity in the net income of any such Person for such period opening, closure, and/or consolidation of operations, offices and facilities; business will be included in such Consolidated Net Income up to the aggregate amount of cash optimization costs, charges or expenses; costs, charges and expenses incurred in or Cash Equivalents actually distributed by such Person during such period to the connection with new product design, development and introductions; costs and Borrower or a Restricted Subsidiary as a dividend or other distribution or return on expenses incurred in connection with intellectual property development and new investment (subject, in the case of a dividend or other distribution or return on systems design; costs and expenses incurred in connection with implementation, investment to a Restricted Subsidiary, to the limitations contained in clause (b) replacement, development or upgrade of operational, reporting and information below); technology systems and technology initiatives; any costs, expenses or charges relating to any governmental investigation or any litigation or other dispute (including with (b) solely for the purpose of determining the amount available for Restricted Payments any customer); costs and expenses in respect of warranty payments; or any fees, under Section 4.05(a)(c)(i), any net income (loss) of any Restricted Subsidiary that is charges, losses, costs and expenses incurred during such period, or any amortization not a Guarantor if such Subsidiary is subject to restrictions, directly or indirectly, on thereof for such period, in connection with or related to any acquisition, Restricted the payment of dividends or the making of distributions by such Restricted Payment, Investment, recapitalization, asset sale, issuance, incurrence, registration or Subsidiary, directly or indirectly, to the Borrower by operation of the terms of such repayment or modification of Indebtedness, issuance or offering of Capital Stock, refinancing transaction or amendment, modification or waiver in respect of the statute or governmental rule or regulation applicable to such Restricted Subsidiary or documentation relating to any such transaction and any charges or non-recurring its shareholders (other than (a) restrictions that have been waived or otherwise merger costs incurred during such period as a result of any such transaction; released, (b) restrictions pursuant to the Senior Secured Notes Indenture, the Senior Secured Notes, the Loan Documents, the Existing Target Notes and the Existing (e) the cumulative effect of a change in accounting principles; Target Notes Indenture, any Intercreditor Agreement or any Additional Intercreditor Agreement, (c) contractual or legal restrictions in effect on the Initial Date with (f) any non-cash compensation charge or expense arising from any grant of stock, stock respect to a Restricted Subsidiary (including pursuant to the agreements specified in options or other equity based awards and any non-cash deemed finance charges in Section 4.07(b)(3) and other restrictions with respect to such Restricted Subsidiary respect of any pension liabilities or other provisions; that, taken as a whole, are not materially less favorable to the Lenders than such restrictions in effect on the Initial Funding Date, and (d) restrictions as in effect on the (g) all deferred financing costs written off and premiums paid or other expenses incurred Initial directly in connection with any early extinguishment of Indebtedness and any net gain equity in the net income of any such Restricted Subsidiary for such period will be (loss) from any write-off or forgiveness of Indebtedness; included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents or non-cash distributions to the extent converted into cash or Cash (h) any unrealized gains or losses in respect of Hedging Obligations or other derivative Equivalents actually distributed or that could have been distributed by such Restricted instruments or any ineffectiveness recognized in earnings related to qualifying hedge Subsidiary during such period to the Borrower or another Restricted Subsidiary as a transactions or the fair value or changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of Hedging Obligations or other derivative instruments; 46 47 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(i) any unrealized foreign currency translation gains or losses in respect of Indebtedness Consolidated Net Senior Secured Leverage Ratio of any Person denominated in a currency other than the functional currency of such the ratio of (x) Consolidated Net Senior Secured Leverage at such date to (y) the aggregate Person and any unrealized foreign exchange gains or losses relating to translation of amount of Pro Forma EBITDA for the most recently ended four full fiscal quarters for which assets and liabilities denominated in foreign currencies; internal financial statements of the Borrower are available immediately preceding the date of determination; provided, however, that the pro forma calculation of the Consolidated Net (j) any unrealized foreign currency translation or transaction gains or losses in respect of Senior Secured Leverage Ratio shall not give effect to (i) any Indebtedness incurred on the Indebtedness or other obligations of the Borrower or any Restricted Subsidiary owing date of determination pursuant to Section 4.04(b) or (ii) the discharge on the date of to the Borrower or any Restricted Subsidiary; determination of any Indebtedness to the extent that such discharge results from the proceeds incurred pursuant to Section 4.04(b). (k) any one-time non-cash charges or any increases in amortization or depreciation resulting from purchase accounting, in each case, in relation to any acquisition of For the avoidance of doubt, in determining Consolidated Net Senior Secured Leverage Ratio, another Person or business or resulting from any reorganization or restructuring no cash or Cash Equivalents shall be included that are the proceeds of Indebtedness in respect involving the Borrower or its Subsidiaries; of which the calculation of the Consolidated Net Senior Secured Leverage Ratio is to be made. (l) any goodwill or other intangible asset impairment charge or write-off; and Contingent Obligations (m) the impact of capitalized, accrued or accreting or pay-in-kind interest or principal on guaranteeing in any manner, whether directly or indirectly, any operating lease, dividend or Subordinated Shareholder Funding. other obligation that d Consolidated Net Leverage the sum, without duplication, of the aggregate contingent: outstanding Specified Indebtedness of the Borrower and its Restricted Subsidiaries on a consolidated basis (excluding (i) Hedging Obligations and (ii) any revolving Indebtedness (a) to purchase any such primary obligation or any property constituting direct or indirect Incurred pursuant to Section 4.04 in an amount not to exceed the greater of (x) $75 million security therefor; and (y) 33.3% Pro Forma EBITDA for the most recently ended four full fiscal quarters for which internal financial statements of the Borrower are available immediately preceding the (b) to advance or supply funds: date of determination), less (B) the aggregate amount of cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries on a consolidated basis. (i) for the purchase or payment of any such primary obligation; or Consolidated Net Leverage Ratio the ratio of (ii) to maintain the working capital or equity capital of the primary obligor or (x) Consolidated Net Leverage at such date to (y) the aggregate amount of Pro Forma otherwise to maintain the net worth or solvency of the primary obligor; or EBITDA for the most recently ended four full fiscal quarters for which internal financial statements of the Borrower are available immediately preceding the date of determination; (c) to purchase property, securities or services primarily for the purpose of assuring the provided, however, that the pro forma calculation of the Consolidated Net Leverage Ratio owner of any such primary obligation of the ability of the primary obligor to make shall not give effect to (i) any Indebtedness incurred on the date of determination pursuant to payment of such primary obligation against loss in respect thereof. Section 4.04(b) or (ii) the discharge on the date of determination of any Indebtedness to the extent that such discharge results from the proceeds incurred pursuant to Section 4.04(b). Credit Facility debt facilities, arrangements, instruments, trust deeds, note purchase agreements or indentures For the avoidance of doubt, in determining Consolidated Net Leverage Ratio, no cash or Cash or commercial paper facilities and overdraft facilities (including this Agreement) with banks, Equivalents shall be included that are the proceeds of Indebtedness in respect of which the institutions, funds or investors providing for revolving credit loans, term loans, receivables calculation of the Consolidated Net Leverage Ratio is to be made. financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), notes, bonds, Consolidated Net Senior Secured Leverage debentures, letters of credit or other Indebtedness, in each case, as amended, restated, outstanding Senior Secured Indebtedness of the Borrower and its Restricted Subsidiaries modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or (excluding (i) Hedging Obligations and (ii) any revolving Indebtedness Incurred pursuant to extended in whole or in part from time to time (and whether in whole or in part and whether Section 4.04 in an amount not to exceed the greater of (x) $75 million and (y) 33.3% Pro or not with the original administrative agent and lenders or another administrative agent or Forma EBITDA for the most recently ended four full fiscal quarters for which internal agents or trustees or other banks, institutions or investors and whether provided under one or financial statements of the Borrower are available immediately preceding the date of more credit or other agreements, indentures, financing agreements or otherwise) and in each determination), less (B) the aggregate amount of cash and Cash Equivalents of the Borrower case including all agreements, instruments and documents executed and delivered pursuant to and the Restricted Subsidiaries on a consolidated basis. or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto and any Guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other Guarantees, pledges, 48 49 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
Escrowed Proceeds the definition of Excluded Subsidiary would or is likely to result in material adverse tax Indebtedness paid into an escrow account with an independent escrow agent on the date of consequences to the Borrower and the Restricted Subsidiaries, taken as a whole. the applicable offering or Incurrence pursuant to escrow arrangements that permit the release of amounts on deposit in such escrow account upon satisfaction of certain conditions or the fair market value specifically provided in this Agreement), may be conclusively established by means of an on the amounts held in escrow. fair market value as determined by such Officer or such Board of Directors in good faith. Exchange Act U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended. Fitch Excluded Contribution Foreign Subsidiary the Borrower at the time of such contribution or, at the option of the Borrower, at the date of Domestic Subsidiary. entry into of a commitment, contract or resolution with respect to such Excluded Contribution, and not adjusted for any subsequent changes in fair market value) of GAAP g principles set forth in the opinions and marketable securities or property or assets or Capital Stock of any Person, in each case, pronouncements of the Accounting Principles Board of the American Institution of Certified received by the Borrower as capital contributions to the equity (other than through the Public Accountants and statements and pronouncements of the Financial Accounting issuance of Disqualified Stock or Designated Preference Shares of the Borrower) after the Standard Boards or in such other statement by such other entity as have been approved by a Closing Date or from the issuance or sale (other than to the Borrower, a Restricted Subsidiary significant segment of the accounting profession as in effect from time to time; provided that, or an employee stock ownership plan or trust established by the Borrower or any Subsidiary at any date after the Initial Funding Date, the Borrower may make an irrevocable election to of the Borrower for the benefit of its employees to the extent funded by the Borrower or any Restricted Subsidiary) of Capital Stock (other than Disqualified Stock or Designated of such election other than with respect to Section 4.10 of this Annex I where GAAP will Preference Shares) or Subordinated Shareholder Funding of the Borrower after the Effective continue to mean as in effect from time to time; and provided further that, at any time after Date, in each case, (i) other than the Equity Contribution and (ii) to the extent designated as the Initial Funding Date, the Borrower may elect to apply IFRS in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS as in effect (except as otherwise provided for in this Agreement) on the date of such election or, Excluded Subsidiary with respect to Section 4.10 of Annex I as in effect from time to time; provided further that the Borrower, (2) any CFC, (3) any Subsidiary that is a direct or indirect Subsidiary of (i) a any such election to apply IFRS, once made, shall be irrevocable and that upon first reporting CFC or (ii) a CFC Holdco, (4) a CFC Holdco, (5) any Subsidiary, including any regulated its fiscal year results under IFRS, it shall restate the financial statements required to be entity that is subject to net worth or net capital or similar capital and surplus restrictions, that delivered under Section 4.10 of Annex I on the basis of IFRS for the fiscal year ending is prohibited or restricted by applicable law, accounting policies or by contractual obligation immediately prior to the first fiscal year for which financial statements have been prepared on existing on the Closing Date and any amendments, restatements, modifications, renewals, the basis of IFRS. The Borrower shall give notice of any such election to the Administrative supplements, refundings, replacements or refinancings of such agreements (provided that Agent. such contractual obligations (A) were not incurred in contemplation of the Acquisition (or, with respect to any Subsidiary acquired by the Borrower or a Restricted Subsidiary after the Global Trading Loan Closing Date (and so long as such contractual obligation was not incurred in contemplation of Oatshare in aggregate principal amount of Β£29.1 million. such acquisition), on the date such Subsidiary is so acquired) or (B) do not extend such prohibition or extension to any non-Excluded Subsidiary) from providing a Guarantee, or if Group estricted Subsidiaries. such Guarantee would require governmental (including regulatory) or third party consent, Guarantee approval, license or authorization, (6) any special purpose securitization vehicle (or similar indirectly guaranteeing any Indebtedness of any other Person, including any such obligation, entity), including any Receivables Entity, (7) any not-for-profit Subsidiary, (8) any other direct or indirect, contingent or otherwise, of such Person: Subsidiary with respect to which, in the reasonable judgment of the Borrower, the burden or cost (including any adverse tax consequences) of providing the Guarantee will outweigh the (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such benefits to be obtained by the Lenders therefrom, (9) each Unrestricted Subsidiary and (10) Indebtedness of such other Person (whether arising by virtue of partnership any other Subsidiary that is not required to provide a Loan Guaranty or Collateral as a result arrangements, or by agreements to keep-well, to purchase assets, goods, securities or of the application of the Agreed Security Principles; provided, that any such Subsidiary that services, to take-or-pay or to maintain financial statement conditions or otherwise); or is an Excluded Subsidiary pursuant to clause (8) above shall cease to be an Excluded Subsidiary at any time such Subsidiary guarantees Indebtedness of the Borrower or any other (b) entered into primarily for purposes of assuring in any other manner the obligee of Guarantor, and provided further, clauses (2), (3) and (4) of this definition shall not apply such Indebtedness of the payment thereof or to protect such obligee against loss in unless the Borrower reasonably determines that the exclusion of any such Subsidiary from respect thereof (in whole or in part), 52 53 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
provided, however to trade payables), in each case only to the extent that the underlying obligation in collection or deposit in the ordinary course of business or any guarantee of respect of which the instrument was issued would be treated as Indebtedness; corresponding meaning. (d) the principal component of all obligations, or liquidation preference, of such Person Hedging Obligations with respect to any Disqualified Stock or, with respect to any Restricted Subsidiary, Interest Rate Agreement, Currency Agreement or Commodity Hedging Agreement. any Preferred Stock (but excluding, in each case, any accrued dividends); IFRS ued by the International (e) the principal component of all Indebtedness of other Persons secured by a Lien on any Accounting Standards Board or any successor board or agency as endorsed by the European asset of such Person, whether or not such Indebtedness is assumed by such Person; Union. provided, however, that the amount of such Indebtedness will be the lesser of (a) the fair market value of such asset at such date of determination (as determined in good Immaterial Subsidiary faith by the Borrower) and (b) the amount of such Indebtedness of such other Persons; Subsidiary that holds no more than 3% of the Total Assets of the Borrower and its Restricted Subsidiaries, taken as a whole; provided, however, that if all of such Immaterial Subsidiaries (f) Guarantees by such Person of the principal component of Indebtedness of other in the aggregate hold assets in excess of 3% of the Total Assets of the Borrower and its Persons to the extent Guaranteed by such Person (other than Guarantees issues Restricted Subsidiaries, then only the Restricted Subsidiaries with the smallest percentage of assets of the Borrower and its Restricted Subsidiaries (not exceeding 3% individually or in (g) to the extent not otherwise included in this definition, net obligations of such Person under Currency Agreements, Commodity Hedging Agreements and Interest Rate Incur er into any Guarantee of, incur, extend or otherwise Agreements (the amount of any such obligations to be equal at any time to the become liable for; provided, however, that other than in the case of any action being taken in termination value of such agreement or arrangement giving rise to such obligation that connection with a Limited Condition Transaction, which shall be governed by Section 1.05 of would be payable by such Person at such time). the Credit Agreement and any Indebtedness or Lien Incurred pursuant to the Section 4.19 of this Annex I which shall be governed by the provisions thereof, (1) any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary any lease, concession or license of property (or Guarantee thereof) which would be (whether by merger, consolidation, acquisition or otherwise) will be deemed to be Incurred considered an operating lease under GAAP, (iii) prepayments of deposits received by the Borrower or such Restricted Subsidiary at the time it becomes a Restricted Subsidiary from clients or customers in the ordinary course of business, (iv) any pension foregoing and (2) obligations, (v) Contingent Obligations, (vi) receivables sold or discounted, whether any Indebtedness pursuant to any Credit Facility, bridge facility, revolving credit or similar recourse or non-recourse, including, for the avoidance of doubt, any obligations under provided or in respect of Qualified Receivables Financing (including, without limitation, further that, the Borrower in its sole discretion may elect that (x) any Indebtedness or portion guarantees by a Receivables Entity of the obligations of another Receivables Entity thereof pursuant to any Credit Facility, bridge facility, revolving credit or similar facility and any indebtedness in respect of Limited Recourse), (vii) obligations under any license, permit or other approval (or Guarantees given in respect of such obligations) commitments in relation to any such facility and/or (y) any Indebtedness, the proceeds of Incurred prior to the Initial Funding Date or in the ordinary course of business, (viii) which are cash- non-interest bearing installment obligations and accrued liabilities Incurred in the no longer cash-collateralized. ordinary course of business that are not more than 120 days past due, (ix) Indebtedness in respect of the Incurrence by the Borrower or any Restricted Indebtedness mination (without Subsidiary of Indebtedness in respect of standby letters of credit, performance bonds duplication): or surety bonds provided by the Borrower or any Restricted Subsidiary in the ordinary course of business to the extent such letters of credit or bonds are not drawn upon or, (a) the principal of indebtedness of such Person for borrowed money; if and to the extent drawn upon are honored in accordance with their terms and if, to be reimbursed, are reimbursed no later than the fifth Business Day following receipt (b) the principal of obligations of such Person evidenced by bonds, debentures, notes or by such Person of a demand for reimbursement following payment on the letter of other similar instruments; credit or bond, (x) any obligations to pay the deferred and unpaid purchase price for assets acquired or services supplied or otherwise owed to the Person (or any assignee (c) all reimbursement obligations of such Person in thereof) from whom such assets are acquired or who supplies such services in acceptances or other similar instruments (the amount of such obligations being equal accordance with the terms pursuant to which the relevant assets were or are to be at any time to the aggregate then undrawn and unexpired amount of such letters of acquired or services were or are to be supplied, (xi) any payroll accruals and (xii) credit or other instruments plus the aggregate amount of drawings thereunder that Indebtedness Incurred by the Borrower or a Restricted Subsidiary in connection with a have not been reimbursed) (except to the extent such reimbursement obligations relate transaction where (A) such Indebtedness is borrowed from a bank or trust company, having a combined capital and surplus and undivided profits of not less than $250 54 55 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
million, whose debt has a rating immediately prior to the time such transaction is agreement or other similar agreement or arrangement to which such Person is party or a entered into, of at least A or the equivalent thereof by S&P, A2 or the equivalent beneficiary. lent thereof by Fitch and (B) a substantially concurrent Investment is made by the Borrower or a Restricted Subsidiary in the form Investment of cash deposited with the lender of such Indebtedness, or a Subsidiary or Affiliate Persons (including Affiliates) in the form of any direct or indirect advance, loan or other thereof, in amount equal to such Indebtedness. For the avoidance of doubt and extensions of credit (other than advances or extensions of credit to customers, suppliers, directors, officers or employees of any Person in the ordinary course of business, and and trade payables and any obligations under guarantees issued in connection with excluding any debt or extension of credit represented by a bank deposit other than a time various operating and telecommunications licenses. deposit, but including any Guarantees incurred pursuant to clause (t) of the definition of Subject to Section 1.05 of the Credit Agreement and Section 4.19 of this Annex I, the property to others or any payment for property or services for the account or use of others), or amount of Indebtedness of any Person at any time in the case of a revolving credit or the Incurrence of a Guarantee of any obligation of, or any purchase or acquisition of Capital similar facility shall be the total amounts of funds borrowed and then outstanding. Stock, Indebtedness or other similar instruments issued by, such other Persons and all other The amount of Indebtedness of any Person at any date shall be determined as set forth items that are or would be classified as investments on a balance sheet (excluding any notes above or otherwise provided in this Agreement, and (other than with respect to letters thereto) prepared on the basis of GAAP; provided, however, that endorsements of negotiable of credit or Guarantees or Indebtedness specified in clauses (e), (f) or (g) above) shall instruments and documents in the ordinary course of business will not be deemed to be an equal the amount thereof that would appear on a balance sheet of such Person Investment. If the Borrower or any Restricted Subsidiary issues, sells or otherwise disposes (excluding any notes thereto) prepared on the basis of GAAP. of any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any Investment by the Borrower or Notwithstanding the above provisions, in no event shall the following constitute any Restricted Subsidiary in such Person remaining after giving effect thereto will be deemed Indebtedness: to be a new Investment equal to the fair market value of the Capital Stock of such Subsidiary not sold or disposed of in an amount determined as provided in Section 4.05(c). (i) in connection with the purchase by the Borrower or any Restricted Subsidiary of any business, any post-closing payment adjustments to which the seller may For purposes of Section 4.05: become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business (a) Investment after the closing; in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net assets of such Restricted Subsidiary at the time that such (ii) Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, compensation claims, early retirement or termination obligations, pension fund that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower obligations or contributions or similar claims, obligations or contributions or will be deemed to continue to have a social security or wage Taxes; Subsidiary at the time of such redesignation less (b) the portion (proportionate to the (iii) parallel debt obligations, to the extent such obligations mirror other idiary) of the fair market value of the net Indebtedness; assets (as conclusively determined by an Officer or the Board of Directors of the Borrower in good faith) of such Subsidiary at the time that such Subsidiary is so re- (iv) Capitalized Lease Obligations; or designated a Restricted Subsidiary; and (v) franchise and performance surety bonds or guarantees. (b) any property transferred to or from an Unrestricted Subsidiary will be valued at its fair Independent Financial Advisor market value at the time of such transfer (or if earlier at the time of entering into an international standing or any third party appraiser of international standing; provided, agreement to sell such property), in each case as determined in good faith by an however, that such firm or appraiser is not an Affiliate of the Borrower. Officer or the Board of Directors of the Borrower. Initial Funding Date Unrestricted Subsidiaries The amount of any Investment outstanding at any time shall be the original cost of Stock of 1334 York LLC is not transferred to an Affiliate of the Borrower that is not a member of the Group on the Initial Funding Date, 1334 York LLC. interest payment, return of capital, repayment or other amount or value received in respect of such Investment. Interest Rate Agreement y Person, any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap Investment Grade Securities agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge 56 57 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(a) securities issued or directly and fully Guaranteed or insured by the United States or Restricted Subsidiaries (other than a Receivables Entity) shall not exceed 25% of the Canadian government or any agency or instrumentality thereof (other than Cash principal amount of such Indebtedness at any time. Equivalents); Loan Guarantee (b) securities issued or directly and fully guaranteed or insured by the United Kingdom, a any Obligations with respect to Swap Contracts of Treasury Services Agreements), executed member state of the European Union, Switzerland, Norway or any agency or pursuant to the provisions of the Facility Guaranty. instrumentality thereof (other than Cash Equivalents); London Properties -5 St. Xxxxxx Street, (ii) (c) debt - 0-0 Xx. Xxxxxx Xxxxxx, (xxx) 0 Xx. Xxxxxx Xxxxxx, (xx) 0 Xx. Xxxxxx Xxxxxx, (x) 00 Xx. Xxxxxx - Xxxxxx, (xx) 00-00 Xxx Xxxx Xxxxxx, and (vii) 00 Xxx Xxxx Xxxxxx, and (viii) 00-00 Xxxxxxx Xxxxxx, which collectively contain the main salesrooms, exhibition spaces, and administrative exists, the equivalent of such rating by any other Nationally Recognized Statistical offices of our U.K. operations. Rating Organization, but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Subsidiaries; and Management Advances Guarantees with respect to loans or advances made to, directors, officers, employees or consultants of any Parent, the (d) investments in any fund that invests exclusively in investments of the type described Borrower or any Restricted Subsidiary: in clauses (a), (b) and (c) above which fund may also hold cash and Cash Equivalents pending investment or distribution. (a) in respect of travel, entertainment or moving related expenses Incurred in the ordinary course of Investor the ultimate controlling shareholder of Next Alt S.Γ x.x. on the Initial Capital Stock or Subordinated Shareholder Funding (or similar obligations) of the Funding Date. Borrower, its Restricted Subsidiaries or any Parent (i) not to exceed an amount (net of repayments of any such loans or advances) equal to $20 million in any calendar year Investor Affiliate (with unused amounts in any calendar year being carried over to the succeeding calendar years; provided that the aggregate Management Advances made under this limited partnerships or entities managed or controlled by the Investor or any of his immediate sub-clause (b)(i) do not exceed $40 million in any fiscal year) or (ii) with the approval of the Board of Directors of the Borrower; Affiliates and direct or indirect Subsidiaries or any trust in respect of which any such persons (b) in respect of moving related expenses Incurred in connection with any closing or is a trustee, (iv) any partnership of which the Investor or any of his immediate family, or any consolidation of any facility or office; or is (c) (in the case of this clause (c) not exceeding $15 million in the aggregate outstanding respective Affiliates or direct or indirect Subsidiaries, and (v) any trust, fund or other entity at any time. which is managed by, or is under the control of, the Investor or any of his immediate family, Management Investors the Borrower or any of its Subsidiaries. other members of the management of or consultants to any Parent, the Borrower, or any of their respective Subsidiaries, or spouses, family members or relatives thereof, or any trust, IPO Entity the Parent Guarantor or any Parent (or any Affiliate or successor of any partnership or other entity for the benefit of or the beneficial owner of which (directly or such Person) provided that the IPO Entity shall be an entity which will issue shares, or whose indirectly) is any of the foregoing, or any of their heirs, executors, successors and legal shares are to be sold, pursuant to a Public Offering. representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Capital Stock of the Borrower, any Restricted Subsidiary or any Parent. Lien kind (including any conditional sale or other title retention agreement or lease in the nature Market Capitalization umber of issued and thereof). outstanding shares of Capital Stock of the IPO Entity on the date of the declaration of the relevant dividend or purchase, repurchase or other acquisition or retirement of common stock Limited Recourse or common equity interests multiplied by (ii) the arithmetic mean of the closing prices per account, guarantee or other credit enhancement issued by the Borrower or any of its share of such Capital Stock for the 30 consecutive trading days immediately preceding the Restricted Subsidiaries (other than a Receivables Entity) in connection with the incurrence of date of declaration of such dividends or purchase, repurchase or other acquisition or Indebtedness by the Borrower or a Receivables Entity under a Qualified Receivables retirement of common stock or common equity interests. Financing; provided that, the aggregate amount of such letter of credit reimbursement obligations and the aggregate available amount of such revolving loan commitments, cash Inc. or any of its successors or assigns that is a collateral accounts, guarantees or other such credit enhancements of the Borrower and its Nationally Recognized Statistical Rating Organization. 58 59 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
Nationally Recognized Statistical Rating Organization the same meaning as such Investment), minus any amounts utilized pursuant to clause (a) and used in Section 3(a)(62) of the Exchange Act. Net Available Cash Officer any cash payments received by way of deferred payment of principal pursuant to a note or Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial installment receivable or otherwise and net proceeds from the sale or other disposition of any Officer, any Vice President, the Treasurer or the Secretary (a) of such Person or (b) if such securities received as consideration, but only as and when received, but excluding any other Person is owned or managed by a single entity, of such entity, or (2) any other individual consideration received in the form of assumption by the acquiring person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset such Person. Disposition or received in any other non-cash form) therefrom, in each case net of: (a) all legal, accounting, investment banking, title and recording tax expenses, of such Person. commissions and other fees and expenses Incurred, and all Taxes paid or required to be paid or accrued as a liability under GAAP (after taking into account any available Opinion of Counsel ns a written opinion from legal counsel reasonably satisfactory to tax credits or deductions and any Tax Sharing Agreements), as a consequence of such the Administrative Agent, which opinion may contain customary assumptions and Asset Disposition; qualifications. The counsel may be an employee of or counsel to any Parent, the Borrower or any of their Subsidiaries. (b) all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets, or Parent which must by its terms, or in order to obtain a necessary consent to such Asset and any holding companies established by any Permitted Holder for purposes of holding its Disposition, or by applicable law, be repaid out of the proceeds from such Asset investment in any Parent. Disposition; Parent Expenses (c) all distributions and other payments required to be made to minority interest holders (other than any Parent, the Borrower or any of their respective Subsidiaries) in (a) costs (including all professional fees and expenses) Incurred by any Parent in Subsidiaries or joint ventures as a result of such Asset Disposition; and connection with reporting obligations under or otherwise Incurred in connection with compliance with applicable laws, rules or regulations of any governmental, regulatory (d) the deduction of appropriate amounts required to be provided by the seller as a or self-regulatory body or stock exchange, this Agreement or any other agreement or reserve, on the basis of GAAP, against (a) any liabilities associated with the assets instrument relating to Indebtedness of a Parent, (excluding principal and interest disposed in such Asset Disposition and retained by the Borrower or any Restricted under any such agreement or instrument relating to obligations of the Parent), the Subsidiary after such Asset Disposition; or (b) any purchase price adjustment or earn- Borrower or any Restricted Subsidiary, including in respect of any reports filed with out in connection with such Asset Disposition. respect to the Securities Act, Exchange Act or the respective rules and regulations promulgated thereunder; Net Cash Proceeds le of Capital Stock or Subordinated Shareholder Funding, any Incurrence of any Indebtedness or any sale of any (b) customary indemnification obligations of any Parent owing to directors, officers, employees or other Persons under its charter or by-laws or pursuant to written es, discounts or commissions and agreements with any such Person to the extent relating to a Parent, the Borrower or brokerage, consultant and other fees and charges actually Incurred in connection with such their respective Subsidiaries; issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credit or deductions and any tax sharing arrangements). (c) obligations of any Parent in respect of director and officer insurance (including premiums therefor) to the extent relating to a Parent, the Borrower or their respective New Bond Property -00 Xxx Xxxx Xxxxxx, Xxxxxx Subsidiaries and reasonable fees and reimbursement of expenses to, and customary indemnities and employee benefit and pension expenses provided on behalf of, U.K. operations. directors, officers, consultants or employees of the Borrower, any Restricted Subsidiary or any Parent (whether directly or indirectly and including through any Non-Guarantor Debt Cap Person owned or controlled by any of such directors, officers or employees); Stock or Preferred Stock equal to $25 million. (d) fees and expenses payable by any Parent in connection with the Transactions; Non-Loan Party Investment Cap $25 million, at any one time outstanding, as determined on a pro forma basis (including a pro forma application of the net proceeds of (e) general corporate overhead expenses, including (a) professional fees and expenses and other operational expenses of any Parent related to the ownership or operation of 60 61 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
the business of the Borrower or any of the Restricted Subsidiaries including beginning of the relevant period, the Consolidated Net Senior Secured Leverage Ratio acquisitions or dispositions by the Borrower or a Subsidiary permitted hereunder is no greater than 4.50 to 1.00, (b) Indebtedness that is permitted to be Incurred under (whether or not successful), in each case, to the extent such costs, obligations and/or clauses (1), (2)(a) (in the case of (2)(a), to the extent such Guarantee is in respect of expenses are not paid by another Subsidiary of such Parent or (b) costs and expenses Indebtedness otherwise permitted to be secured on the Collateral and specified in this with respect to any litigation or other dispute relating to the Transactions, or the definition of Permitted Collateral Liens), (4)(b) (in the case of (4)(b), only in respect ownership, directly or indirectly, by any Parent; of Existing Target Notes that are not repurchased pursuant to the Change of Control Tender), (5) (so long as, in the case of clause (5), on the date of Incurrence of (f) and to Indebtedness pursuant to such clause (5) and after giving effect thereto on a pro forma provide for other ordinary course operating costs, including customary salary, bonus basis (including a pro forma application of the net proceeds therefrom) as if such and other benefits payable to officers and employees of such Parent; Indebtedness had been Incurred at the beginning of the relevant period, either (x) the Consolidated Net Senior Secured Leverage Ratio is no greater than 4.50 to 1.00 or (g) to reimburse out-of-pocket expenses of the Board of Directors of any Parent and (y) the Consolidated Net Senior Secured Leverage Ratio would not be greater than it payment of all reasonable out-of-pocket expenses Incurred by any Permitted Holder was immediately prior to giving effect to such acquisition or other transaction), (7)(a) in connection with its direct or indirect investment in the Borrower and its (to the extent relating to Currency Agreements or Interest Rate Agreements related to Subsidiaries; Indebtedness, (7)(b), (14) (so long as, in the case of clause (14), on the date of Incurrence of Indebtedness pursuant to such clause (14) and after giving effect thereto (h) other fees, expenses and costs relating directly or indirectly to activities of the on a pro forma basis (including a pro forma application of the net proceeds therefrom) Borrower and its Subsidiaries or any Parent or any other Person established for as if such Indebtedness had been Incurred at the beginning of the relevant period, purposes of or in connection with the Transactions or which holds directly or together with any Incurrence of Indebtedness pursuant to clause (5) of Section 4.04(b) indirectly any Capital Stock or Subordinated Shareholder Funding of the Borrower, in on the date on which Indebtedness pursuant to clause (14) is Incurred, (x) the an amount not to exceed $5 million in any fiscal year; Consolidated Net Senior Secured Leverage Ratio is no greater than 4.50 to 1.0 and (y) the Borrower could Incur at least $1.00 of additional Indebtedness under Section (i) any Public Offering Expenses; 4.04(a) and clause (16) under Section 4.04(b) and (c) any Refinancing Indebtedness in (j) payments pursuant to any Tax Sharing Agreement in the ordinary course of business respect of Indebtedness referred to in the foregoing clause (a) or (b), provided, or as a result of the formation and maintenance of any consolidated group for tax or however, that (i) such Lien shall rank pari passu or junior to the Liens securing the accounting purposes in the ordinary course of business; and Loans and the Loan Guarantees (including by virtue of any Intercreditor Agreement or an Additional Intercreditor Agreement); (ii) in each case, all property and assets (k) franchise, excise and similar taxes and other fees, taxes and expenses, in each case, (including, without limitation, the Collateral) securing such Indebtedness also secure required for the Borrower to maintain its operations and paid by the Parent. the Loans or the Loan Guarantees on a senior or pari passu basis (including by virtue of any Intercreditor Agreement or an Additional Intercreditor Agreement but no such Pension Plan ltiemployer Plan, which Indebtedness shall have priority to the Loans over amounts received from the sale of is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA. the Collateral pursuant to an enforcement sale or other distressed disposal of such Collateral); and (iii) each of the parties thereto will have entered into an Intercreditor Permitted Asset Swap Agreement or an Additional Intercreditor Agreement. or useful in a Similar Business or a combination of such assets and cash, Cash Equivalents or Temporary Cash Investments between the Borrower or any of the Restricted Subsidiaries and Permitted Holders another Person; provided that any cash or Cash Equivalents received in excess of the value of Person who is acting as an underwriter in connection with a public or private offering of any cash or Cash Equivalents sold or exchanged must be applied in accordance with Section Capital Stock of any Parent or the Borrower, acting in such capacity. 4.08. Permitted Investment Permitted Collateral Liens Subsidiaries): (a) Liens on the Collateral that are described in one or more of clauses (b), (c), (d), (e), (a) Investments in (i) a Restricted Subsidiary (including the Capital Stock of a Restricted (f), (h), (i), (k), (l), (m), (r), (t), (w), (x), (aa), (bb) and (ll) of the definition of Subsidiary) or the Borrower or (ii) any Person (including the Capital Stock of any such Person) that is engaged in any Similar Business and such Person will, upon the making of such Investment, become a Restricted Subsidiary; provided that no Loan (b) Liens on the Collateral to secure (a) Indebtedness that is permitted to be Incurred Party may make any Investment in a Restricted Subsidiary that is not a Loan Party under Section 4.04(a) so long as on the date of Incurrence of such Indebtedness and under this clause (a) if, and to the extent that, the aggregate outstanding amount of after giving effect thereto on a pro forma basis (including a pro forma application of Investments made by Loan Parties in Restricted Subsidiaries that are not Loan Parties the net proceeds therefrom) as if such Indebtedness had been Incurred at the would exceed the Non-Loan Party Investment Cap; 62 63 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(b) Investments in another Person if such Person is engaged in any Similar Business and (k) pledges or deposits with respect to leases or utilities provided to third parties in the as a result of such Investment such other Person is merged, consolidated or otherwise ordinary course of business or Liens otherwise described in the definition of combined with or into, or transfers or conveys all or substantially all its assets to, the Borrower or a Restricted Subsidiary; provided that no Loan Party may make any Investment in a Restricted Subsidiary that is not a Loan Party under this clause (b) if, (l) any Investment to the extent made using Capital Stock of the Borrower (other than and to the extent that, the aggregate outstanding amount of Investments made by Disqualified Stock or Designated Preference Shares), Subordinated Shareholder Loan Parties in Restricted Subsidiaries that are not Loan Parties would exceed the Funding or Capital Stock of any Parent as consideration; Non-Loan Party Investment Cap, except to the extent such Restricted Subsidiary is not otherwise required to become a Guarantor pursuant to Section 5.14; (m) any transaction to the extent constituting an Investment that is permitted and made in accordance with the provisions of Section 4.09(b) (except those described in (c) Investments in cash, Cash Equivalents, Temporary Cash Investments or Investment Section 4.09(b)(1), Section 4.09(b)(3), Section 4.09(b)(6), Section 4.09(b)(8), Grade Securities; Section 4.09(b)(9) and Section 4.09(b)(12)); (d) Investments in receivables owing to the Borrower or any Restricted Subsidiary (n) Guarantees not prohibited by Section 4.04 and (other than with respect to created or acquired in the ordinary course of business and payable or dischargeable in Indebtedness) guarantees, keepwells and similar arrangements in the ordinary course accordance with customary trade terms; provided, however, that such trade terms may of business, in each case, other than Guarantees of the obligations of the SFS Business include such concessionary trade terms as the Borrower or any such Restricted in connection with securitization of the loans described in clause (t) below; Subsidiary deems reasonable under the circumstances; (o) Investments in the Loans, the Senior Secured Notes (and any additional notes issued (e) Investments in payroll, travel and similar advances to cover matters that are expected under the Senior Secured Notes Indenture), the Existing Target Notes, or any Pari at the time of such advances ultimately to be treated as expenses for accounting Passu Indebtedness of the Borrower or a Subsidiary Guarantor; purposes and that are made in the ordinary course of business; (p) (a) Investments acquired after the Initial Funding Date as a result of the acquisition by (f) Management Advances; the Borrower or any Restricted Subsidiary of another Person, including by way of a merger, amalgamation or consolidation with or into the Borrower or any of its (g) Investments in Capital Stock, obligations or securities received in settlement of debts Restricted Subsidiaries in a transaction that is not prohibited by Article V hereof to created in the ordinary course of business and owing to the Borrower or any the extent that such Investments were not made in contemplation of such acquisition, Restricted Subsidiary (including obligations of trade creditors and customers), or as a merger, amalgamation or consolidation and (b) Investments of a Restricted Subsidiary result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of existing on the date such Person becomes a Restricted Subsidiary to the extent that judgments or pursuant to any plan of reorganization or similar arrangement including such Investments were not made in contemplation of such Person becoming a upon the bankruptcy or insolvency of a debtor or in compromise or resolution of any Restricted Subsidiary; litigation, arbitration or other dispute; (q) Investments, taken together with all other Investments made pursuant to this clause (h) Investments made as a result of the receipt of non-cash consideration from a sale or (q) and at any time outstanding, in an aggregate amount at the time of such other disposition of property or assets, including an Asset Disposition, in each case, Investment not to exceed the greater of 35% of Pro Forma EBITDA for the most that was made in compliance with Section 4.08 and other Investments resulting from recently ended four full fiscal quarters for which internal financial statements of the the disp Borrower are available immediately preceding the date of determination and $75 million plus the amount of any distributions, dividends, payments or other returns in respect of such Investments (without duplication for purposes of Section 4.05) (with (i) Investments in existence on, or made pursuant to legally binding commitments in the fair market value of each Investment being measured in accordance with Section existence on, the Initial Funding Date and any modification, replacement, renewal or 4.05); provided, that, if an Investment is made pursuant to this clause in a Person that extension thereof; provided that the amount of any such Investment may not be is not a Restricted Subsidiary and such Person subsequently becomes a Restricted increased except (a) as required by the terms of such Investment as in existence on the Subsidiary, such Investment shall thereafter be deemed to have been made pursuant to Initial Funding Date or (b) as otherwise permitted by this Agreement; (j) Currency Agreements, Interest Rate Agreements, Commodity Hedging Agreements (r) Investments in (a) joint ventures and similar entities and (b) Unrestricted Subsidiaries and related Hedging Obligations, which transactions or obligations are Incurred having an aggregate fair market value, when taken together with all other Investments pursuant to Section 4.04(b)(7); made pursuant to this clause (r) that are at the time outstanding, not to exceed the greater of $75 million and 35% of Pro Forma EBITDA for the most recently ended four full fiscal quarters for which internal financial statements of the Borrower are available immediately preceding the date of determination at the time of such 64 65 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
Investment plus the amount of any distributions, dividends, payments or other returns obligations (including pledges or deposits securing liability to insurance carriers under in respect of such Investments (without duplication for purposes of Section 4.05) insurance or self-insurance arrangements and including Liens on insurance policies (with the fair market value of each Investment being measured in accordance with and proceeds thereof, or other deposits, to secure insurance premium financings), or Section 4.05(c)); in connection with bids, tenders, completion guarantees, contracts (other than for borrowed money) or leases, or to secure utilities, licenses, public or statutory (s) Investments by the Borrower or a Restricted Subsidiary in a Receivables Entity or any obligations, or to secure surety, indemnity, judgment, appeal or performance bonds, Investment by a Receivables Entity in any other Person, in each case, in connection guarantees of government contracts (or other similar bonds, instruments or with a Qualified Receivables Financing, provided, however, that any Investment in obligations), or as security for contested taxes or import or customs duties or for the any such Person is in the form of a Purchase Money Note, or any equity interest or payment of rent, or other obligations of like nature, in each case Incurred in the interests in Receivables and related assets generated by the Borrower or a Restricted ordinary course of business; Subsidiary and transferred to any Person in connection with a Qualified Receivables Financing or any such Person owning such Receivables; (c) Liens (t) Guarantees by the Borrower and the Subsidiary Guarantors of the obligations of the overdue for a period of more than 60 days or that are bonded or being contested in SFS Business in connection with securitization of the loans originated by the SFS good faith by appropriate proceedings; Business subsequent to the Closing Date in an amount not to exceed at any time 15% of the aggregate principal amount of such securitized loans, provided that (i) such (d) Liens for taxes, assessments or other governmental charges not yet subject to securitization is on market terms and (ii) such Guarantees (including any fees payable penalties for non-payment or which are being contested in good faith by appropriate to the Borrower and any Subsidiary Guarantor in connection therewith) are on terms proceedings; provided that appropriate reserves required pursuant to GAAP have been not materially less favorable to the Borrower or a Restricted Subsidiary than those made in respect thereof; -length dealings with a Person who is not an Affiliate; (e) (a) Liens in favor of issuers of surety, performance or other bonds, guarantees or (u) Investments made to effect, or otherwise made in connection with, the Transactions to borrowed money) issued pursuant to the request of and for the account of the the extent described in the Offering Memorandum or any non-cash Investments made Borrower or any Restricted Subsidiary in the ordinary course of its business and (b) in connection with Permitted Reorganizations; and Liens in connection with cash management programs established in the ordinary course of business; (v) Investments by the Borrower or a Restricted Subsidiary in an Initial Funding Date Unrestricted Subsidiary, in existence as of the Initial Funding Date. (f) encumbrances, ground leases, easements (including reciprocal easement agreements), survey exceptions, or reservations of, or rights of others for, licenses, rights of way, Permitted Licensing Activities sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including minor defects or irregularities (a) non- in title and similar encumbrances) as to the use of real properties or Liens incidental conducted in the ordinary course of business; to the conduct of the business of the Borrower and the Restricted Subsidiaries or to the ownership of its properties which do not in the aggregate materially adversely (b) affect the value of said properties or materially impair their use in the operation of the trademarks pursuant to the Realogy License Agreement entered between the Target business of the Borrower and the Restricted Subsidiaries; and Realogy Corporation (formerly known as Cendant Corporation) on February 17, 2004; and (g) Liens on assets or property of the Borrower or any Restricted Subsidiary securing Hedging Obligations permitted under this Agreement; (c) in Australia and art education services in the United States and the United Kingdom. (h) leases, licenses, subleases and sublicenses of assets (including real property and intellectual property rights), in each case entered into in the ordinary course of Permitted Liens business; (a) Liens on assets or property of a Restricted Subsidiary that is not a Subsidiary (i) Liens arising out of judgments, decrees, orders or awards not giving rise to an Event Guarantor securing Indebtedness of such Restricted Subsidiary or another Restricted of Default and notices of lis pendens and associated rights so long as any appropriate Subsidiary that is not a Subsidiary Guarantor; legal proceedings which may have been duly initiated for the review of such judgment, decree, order, award or notice have not been finally terminated or the (b) period within which such proceedings may be initiated has not expired; insurance laws, social security laws or similar legislation, or insurance related 66 67 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(j) Liens on assets or property of the Borrower or any Restricted Subsidiary (including that secured (or, under the written arrangements under which the original Lien arose, Capital Stock) for the purpose of securing Capitalized Lease Obligations or Purchase could secure) the Indebtedness being refinanced or is in respect of property that is or Money Obligations, or securing the payment of all or a part of the purchase price of, could be the security for or subject to a Permitted Lien hereunder; or securing other Indebtedness Incurred to finance or refinance the acquisition, improvement or construction of, assets or property acquired or constructed in the (q) any interest or title of a lessor under any Capitalized Lease Obligation or operating ordinary course of business; provided that (a) the aggregate principal amount of lease; Indebtedness secured by such Liens is otherwise permitted to be Incurred under this Agreement (excluding Indebtedness Incurred pursuant to Section 4.04(a)) and (b) any (r) (a) mortgages, liens, security interest, restrictions, encumbrances or any other matters such Lien may not extend to any assets or property of the Borrower or any Restricted of record that have been placed by any government, statutory or regulatory authority, Subsidiary other than assets or property acquired, improved, constructed or leased developer, landlord or other third party on property over which the Borrower or any with the proceeds of such Indebtedness and any improvements or accessions to such Restricted Subsidiary has easement rights or on any leased property and subordination assets and property; or similar arrangements relating thereto and (b) any condemnation or eminent domain proceedings affecting any real property; (k) Liens, rights of set-off or similar rights and remedies as to deposit accounts or other (s) any encumbrance or restriction (including put and call arrangements) with respect to funds maintained with a depositary or financial institution (including, without Capital Stock of, or assets owned by, any joint venture or similar arrangement limitation, Liens of a collection bank arising under Section 4-210 of the Uniform pursuant to any joint venture or similar agreement; Commercial Code); (t) Liens on property or assets under construction (and related rights) in favor of a (l) Liens arising from Uniform Commercial Code financing statement filings (or similar contractor or developer or arising from progress or partial payments by a third party filings in other applicable jurisdictions) regarding operating leases entered into by the relating to such property or assets; Borrower and the Restricted Subsidiaries in the ordinary course of business; (u) Liens on Receivables Assets Incurred in connection with a Qualified Receivables (m) with respect to the Borrower and its Restricted Subsidiaries, Liens existing on or Financing; provided for or required to be granted under written agreements existing on the Closing Date after giving effect to the Transactions, the SFS Business Transfer and (v) Liens on Escrowed Proceeds for the benefit of the related holders of debt securities the Permitted Sale and Leaseback Transactions; (including the Senior Secured Notes) or other Indebtedness (or the underwriters or arrangers thereof) or on cash set aside at the time of the Incurrence of any (n) Liens on property, other assets or shares of stock of a Person at the time such Person Indebtedness or government securities purchased with such cash, in either case to the becomes a Restricted Subsidiary (or at the time the Borrower or a Restricted extent such cash or government securities prefund the payment of interest on such Subsidiary acquires such property, other assets or shares of stock, including any Indebtedness and are held in an escrow account or similar arrangement to be applied acquisition by means of a merger, consolidation or other business combination for such purpose; transaction with or into the Borrower or any Restricted Subsidiary); provided, however, that such Liens are not created, Incurred or assumed in anticipation of or in (w) connection with such other Person becoming a Restricted Subsidiary (or such acquisition of such property, other assets or stock); provided, further, that such Liens acceptances issued or created in the ordinary course of business of such Person to are limited to all or part of the same property, other assets or stock (plus facilitate the purchase, shipment or storage of such inventory or other goods and Liens improvements, accession, proceeds or dividends or distributions in connection with securing or arising by reason of any netting or set-off arrangement entered into in the the original property, other assets or stock) that secured (or, under the written ordinary course of banking or other trading activities; arrangements under which such Liens arose, could secure) the obligations to which (x) Liens arising out of conditional sale, title retention, hire purchase, consignment such Liens relate; (including Liens in favour of a consignor on a segregated deposit account established (o) Liens on assets or property of the Borrower or any Restricted Subsidiary securing for the benefit of such consignor and into which only proceeds of works of art Indebtedness or other obligations of the Borrower or such Restricted Subsidiary consigned by such consignor to the Borrower or any of its Subsidiaries for sale owing to the Borrower or another Restricted Subsidiary, or Liens in favor of the Borrower or any Restricted Subsidiary; deposited) or similar arrangements for the sale of goods entered into in the ordinary course of business, and pledges of goods, the related documents of title and/or other (p) Liens securing Refinancing Indebtedness Incurred to refinance Indebtedness that was related documents arising or created in the ordinary course of business or operations previously so secured, and permitted to be secured under this Agreement; provided as Liens only for Indebtedness to a bank or financial institution directly relating to the that any such Lien is limited to all or part of the same property or assets (plus goods or documents on or over which the pledge exists; improvements, accessions, proceeds or dividends or distributions in respect thereof) 68 69 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(y) Permitted Collateral Liens; (ll) Liens or rights of set-off against credit balances of the Borrower or any of the Restricted Subsidiaries with credit card issuers or credit card processors or amounts (z) Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that owing by such credit card issuers or credit card processors to the Borrower or any secure Indebtedness of such Unrestricted Subsidiary; Restricted Subsidiaries in the ordinary course of business to secure the obligations of the Borrower or any Restricted Subsidiary to the credit card Borrowers or credit card (aa) any security granted over Cash Equivalents in connection with the disposal thereof to processors as a result of fees and charges; a third party and Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness; (mm) customary Liens of an indenture trustee on money or property held or collected by it to secure fees, expenses and indemnities owing to it by any obligor under an (bb) (a) Liens created for the benefit of or to secure, directly or indirectly, the Obligations, indenture; and (b) Liens pursuant to any Intercreditor Agreement and (c) Liens in respect of property and assets securing Indebtedness if the recovery in respect of such Liens is subject to (nn) Liens arising in connection with any Permitted Reorganization. loss-sharing or similar provisions as among the Lenders and the creditors of such Indebtedness pursuant to any Intercreditor Agreement or an Additional Intercreditor Permitted Reorganization d other activities related to tax Agreement; planning and tax reorganization, so long as, after giving effect thereto, the enforceability of the Loan Guarantees and the security of the Secured Parties in the Collateral, in each case (cc) Liens created on any asset of the Borrower or a Restricted Subsidiary established to taken as a whole, are not materially impaired. hold assets of any stock option plan or any other management or employee benefit or incentive plan or unit trust of the Borrower or a Restricted Subsidiary securing any Permitted Sale and Leaseback Transactions loan to finance the acquisition of such assets; the lease transactions in respect of the York Property and the London Properties; provided that: (dd) Liens; provided that the maximum amount of Indebtedness secured in the aggregate at any one time pursuant to this clause (dd) does not exceed the greater of $45 million (a) each of the lease transactions relating to the London Properties and the York Property and 20% of Pro Forma EBITDA for the most recently ended four full fiscal quarters is, in the reasonable determination of the Borrower, on terms not materially less for which internal financial statements of the Borrower are available immediately favorable to the Borrower or a Restricted Subsidiary than those that could be obtained preceding the date of determination; -length dealings with a Person who is not an Affiliate; (ee) Liens consisting of any right of set-off granted to any financial institution acting as a lockbox bank in connection with a Qualified Receivables Financing; (b) the terms of such lease arrangement(s) do not restrict rights of the lessee and the scope of use of the real estate subject to such lease transactions in a material way from (ff) Liens for the purpose of perfecting the ownership interests of a purchaser of the manner such real estate is used by the Borrower and the Restricted Subsidiaries Receivables and related assets pursuant to any Qualified Receivables Financing; immediately prior to the Closing Date; and (gg) Cash deposits or other Liens for the purpose of securing Limited Recourse; (c) the initial term of the lease arrangement(s) related to the York Property and the London Properties shall, in each case, not be less than the Initial Term Loan Maturity (hh) Liens arising in connection with other sales of Receivables permitted hereunder Date. without recourse to the Borrower or any of its Restricted Subsidiaries; Person - (ii) [Reserved]; stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity. (jj) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts Preferred Stock incurred in the ordinary course of business and not for speculative purposes; class or classes (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of (kk) Liens (a) on any xxxx xxxxxxx money deposits or cash advances made by the Borrower such Person, over shares of Capital Stock of any other class of such Person. or any of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Agreement, or (b) on other cash advances in Pro Forma EBITDA favor of the seller of any property to be acquired in an Investment or other acquisition and the Restricted Subsidiaries, provided that for the purposes of calculating Pro Forma permitted hereunder to be applied against the purchase price for such Investment or EBITDA for such period, if, as of such date of determination: other acquisition; 70 71 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(a) since the beginning of such period the Borrower or any Restricted Subsidiary has if such transaction had occurred on the first day of the relevant period and (c) if any disposed of any company, any business, or any group of assets constituting an Indebtedness bears a floating rate of interest and is being given pro forma effect, the operating unit of a business or otherwise ceases to be a Restricted Subsidiary (and is interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account or if the transaction giving rise to the need to calculate Pro Forma EBITDA is such a any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation Sale, Pro Forma EBITDA for such period will be reduced by an amount equal to the has a remaining term in excess of 12 months). Consolidated EBITDA (if positive) attributable to the assets which are the subject of such Sale for such period or increased by an amount equal to the Consolidated Public Debt es or other EBITDA (if negative) attributable thereto for such period; provided that if any such similar debt securities issued in (1) a public offering registered under the Securities Act or (2) a private placement to institutional investors that is underwritten for resale in accordance with Net Income shall be reduced by an amount equal to the Consolidated Net Income (if Rule 144A or Regulation S under the Securities Act, whether or not it includes registration positive) attributable to such operations for such period or increased by an amount rights entitling the holders of such debt securities to registration thereof with the SEC for equal to the Consolidated Net Income (if negative) attributable thereto for such public resale. period; Public Offering (b) since the beginning of such period, a Parent, the Borrower or any Restricted common stock or other common equity interests that are listed on an exchange or publicly Subsidiary (by merger or otherwise) has made an Investment in any Person that offered (which shall include an offering pursuant to Rule 144A and/or Regulation S under the thereby becomes a Restricted Subsidiary, or otherwise has acquired any company, any Securities Act to professional market investors or similar persons). business, or any group of assets constituting an operating unit of a business or a Person otherwise becomes a Restricted Subsidiary (and remains a Restricted Public Offering Expenses Subsidiary at the end of such period) (any such Investment, acquisition or designation, Public Offering or any offering of Public Debt (whether or not successful): (a) where the net proceeds of such offering are intended to be received by or contributed causing a calculation to be made hereunder, Pro Forma EBITDA for such period will or loaned to the Borrower or a Restricted Subsidiary; be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and (b) in a pro-rated amount of such expenses in proportion to the amount of such net proceeds intended to be so received, contributed or loaned; or (c) since the beginning of such period, any Person (that became a Restricted Subsidiary or was merged or otherwise combined with or into the Borrower or any Restricted (c) otherwise on an interim basis prior to completion of such offering so long as any Subsidiary since the beginning of such period) will have made any Sale or any Parent shall cause the amount of such expenses to be repaid to the Borrower or the Purchase that would have required an adjustment pursuant to clause (a) or (b) above if relevant Restricted Subsidiary out of the proceeds of such offering promptly if made by the Borrower or a Restricted Subsidiary since the beginning of such period, completed, in each case, to the extent such expenses are not paid by another Pro Forma EBITDA for such period will be calculated after giving pro forma effect Subsidiary of such Parent. thereto as if such Sale or Purchase occurred on the first day of such period. Purchase For the purposes of this definition and the definitions of Consolidated EBITDA, Consolidated Income Taxes, Consolidated Interest Expense, Consolidated Net Purchase Money Note Income, Consolidated Net Leverage Ratio and Consolidated Net Senior Secured deferred purchase price of Receivables (and related assets) and/or a line of credit, which may Leverage Ratio or any other purpose hereunder (a) whenever pro forma effect is to be be irrevocable, from the Borrower or any Restricted Subsidiary in connection with a given to any transaction (including, without limitation, transactions listed in Qualified Receivables Financing with a Receivables Entity, which deferred purchase price or clauses (a)-(c) hereof) or calculation hereunder or such other definitions, the pro line is repayable from cash available to a Receivables Entity, other than amounts required to forma calculations will be as determined in good faith by a responsible financial or be established as reserves pursuant to agreements, amounts paid to investors in respect of accounting officer of the Borrower or an Officer of the Borrower (including in respect interest, principal and other amounts owing to such investors and amounts owing to such of anticipated expense and cost reductions and synergies (other than revenue investors and amounts paid in connection with the purchase of newly generated Receivables. synergies)) (calculated on a pro forma basis as though such expense and cost reductions and synergies had been realized on the first day of the period for which Pro Purchase Money Obligations Forma EBITDA is being determined and as though such cost savings, operating acquisition, leasing, construction or improvement of property (real or personal) or assets expense reductions and synergies were realized during the entirety of such period), (including Capital Stock), and whether acquired through the direct acquisition of such (b) in determining the amount of Indebtedness outstanding on any date of property or assets or the acquisition of the Capital Stock of any Person owning such property determination, pro forma effect shall be given to any Incurrence, repayment, or assets, or otherwise. repurchase, defeasance or other acquisition, retirement or discharge of Indebtedness as 72 73 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
Qualified Receivables Financing except, in each case, Limited Recourse and sub-clauses (ee) through (hh) of the Entity that meets the following conditions: (1) an Officer or the Board of Directors of the definition of Permitted Liens; Borrower shall have determined in good faith that such Qualified Receivables Financing (including financing terms, covenants, termination events and other provisions) is in the (b) with which neither the Borrower nor any other Restricted Subsidiary has any material aggregate economically fair and reasonable to the Borrower and the Receivables Entity, (2) contract, agreement, arrangement or understanding (except in connection with a all sales of accounts receivable and related assets to the Receivables Entity are made at fair Purchase Money Note or a Qualified Receivables Financing) other than on terms market value (as determined in good faith by the Borrower), and (3) the financing terms, which the Borrower reasonably believes to be no less favorable to the Borrower or covenants, termination events and other provisions thereof shall be on market terms (as such Restricted Subsidiary than those that might be obtained at the time from Persons determined in good faith by the Borrower) and may include Standard Securitization that are not Affiliates of the Borrower other than fees payable in the ordinary course Undertakings. of business in connection with servicing Receivables; and The grant of a security interest in any accounts receivable of the Borrower or any Restricted (c) to which neither the Borrower nor any other Restricted Subsidiary has any obligation Subsidiary (other than a Receivables Entity) to secure Indebtedness under a Credit Facility or to maintain or preserve Indebtedness in respect of the Senior Secured Notes shall not be deemed a Qualified achieve certain levels of operating results (other than those related to or incidental to Receivables Financing. the relevant Qualified Receivables Financing), except for Limited Recourse. Real Estate Portfolio Transfer Any such designation by the Board of Directors of the Borrower shall be evidenced to the in the transfers of the York Property and of the London Properties from the Target or a Administrative Agent by filing with the Administrative Agent a copy of the resolution of the Restricted Subsidiary to other entities. Certificate certifying that such designation complied with the foregoing conditions. Receivable sing from a sale or lease of goods or services by a Person pursuant to an arrangement with another Person pursuant to which such Receivables Fees other Person is obligated to pay for goods or services under terms that permit the purchase of with respect to any participation interest issued or sold in connection with, and other fees paid such goods and services on credit, as determined on the basis of GAAP, and shall include, in to a Person that is not a Restricted Subsidiary in connection with, any Receivables Financing. Receivables Financing State of New transaction related to the SFS Business Transfer) that may be entered into by the Borrower or any of its Subsidiaries pursuant to which the Borrower or any of its Subsidiaries may sell, Receivables Assets convey or otherwise transfer to (a) a Receivables Entity (in the case of a transfer by the related assets and property (including proceeds thereof) from time to time originated, Borrower or any of its Subsidiaries), or (b) any other Person (in the case of a transfer by a acquired or otherwise owned by the Borrower or any Subsidiary, including, without Receivables Entity), or may grant a security interest in, any accounts receivable (whether limitation, assets that are or will be the subject of a Qualified Receivables Financing. now existing or arising in the future) of the Borrower or any of its Subsidiaries, and any assets related thereto, including all collateral securing such accounts receivable, all contracts Receivables Entity and all guarantees or other obligations in respect of such accounts receivable, proceeds of in which the Borrower or any Subsidiary of the Borrower makes an Investment and to which such accounts receivable and other assets which are customarily transferred or in respect of the Borrower or any Subsidiary of the Borrower transfers accounts receivable and related which security interest are customarily granted in connection with asset securitization assets) which engages in no activities other than in connection with the financing of accounts transactions involving accounts receivable and any Hedging Obligations entered into by the receivable of the Borrower and its Subsidiaries, all proceeds thereof and all rights Borrower or any such Subsidiary in connection with such accounts receivable. (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board of Receivables Repurchase Obligation Directors of the Borrower (as provided below) as a Receivables Subsidiary and: Qualified Receivables Financing to repurchase receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of which (i) is guaranteed by the Borrower or any Restricted Subsidiary (excluding any kind as a result of any action taken by, any failure to take action by or any other event guarantees of obligations (other than the principal of, and interest on, Indebtedness) relating to the seller. pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates the Borrower or any Restricted Subsidiary in any way other than pursuant to Standard Refinance efund, replace, renew, repay, modify, restate, defer, Securitization Undertakings or (iii) subjects any property or asset of the Borrower or substitute, supplement, reissue, resell, extend or increase (including pursuant to any any Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings se in this Agreement shall have a correlative meaning. 74 75 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
respect to such accounts receivable and any other assets customarily transferred together with servicing the existing portfolio of loans and any future portfolio of loans made by the SFS accounts receivable in a securitization financing. Business), which transactions will be completed in all material respects substantially concurrently with the closing of the Acquisition. Senior Secured Indebtedness determination, any Specified Indebtedness; provided that such Indebtedness is in each case Similar Business secured by a Lien on the assets of the Borrower or its Restricted Subsidiaries on a basis pari engaged in by the Borrower or any of its Subsidiaries on the Closing Date and (b) any passu with or senior to the security in favor of the Loans. businesses, services and activities that are targeted towards (x) the luxury or premium segments of the market or (y) financially successful clients and (z) any business services and Senior Secured Notes Indenture as of the Effective Date, as activities (including marketing) engaged in by the Parent, the Borrower or any of its amended, between the Borrower, as issuer, and the trustee party thereto, governing the Senior Subsidiaries that are (i) related, complementary, incidental, ancillary or similar to any of the Secured Notes. foregoing or (ii) are reasonable extensions or developments of any thereof. Senior Secured Notes Security Documents Specified Indebtedness agreements, collateral assignments, and any other instrument and document executed and any Indebtedness for borrowed money that is Incurred under Section 4.04(a), delivered pursuant to the Senior Secured Notes Indenture or otherwise or any of the Section 4.04(b)(1), Section 4.04(b)(4)(a), Section 4.04(b)(4)(b), Section 4.04(b)(4)(c), foregoing, as the same may be amended, supplemented or otherwise modified from time to Section 4.04(b)(5), Section 4.04(b)(7), Section 4.04(b)(14) or Section 4.04(b)(16) and any time, creating the security interests in the Collateral as contemplated by the Senior Secured Refinancing Indebtedness in respect of the foregoing. Notes Indenture. Standard Securitization Undertakings Servicer Agreement indemnities and guarantees of performance entered into by the Borrower or any Subsidiary of Borrower or any Restricted Subsidiary provides customary servicing services in connection the Borrower which the Borrower has determined in good faith to be customary in a with any securitization of loan portfolios by the SFS Business. Receivables Financing, securitization financing or for such type of factoring or similar arrangement, including, without limitation, Limited Recourse and those relating to the Significant Subsidiary ny Restricted Subsidiary that meets any of the following servicing of the assets of a Receivables Entity, it being understood that any Receivables conditions: Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking. (a) Stated Maturity Restricted Subsidiary exceed 10% of total assets of the Borrower and the Restricted of Indebtedness, the date on which the payment of interest or principal is scheduled to be Subsidiaries on a consolidated basis as of the end of the most recently completed paid, and will not include any contingent obligations to repay, redeem or repurchase any such fiscal year; interest or principal prior to the date scheduled for the payment thereof. (b) Subordinated Indebtedness case of the Borrower, any Indebtedness (whether (after intercompany eliminations) of the Restricted Subsidiary exceeds 10% of total outstanding on the Effective Date or thereafter Incurred) which is expressly subordinated or assets of the Borrower and the Restricted Subsidiaries on a consolidated basis as of junior in right of payment to the Loans or pursuant to a written agreement and, in the case of the end of the most recently completed fiscal year; or a Subsidiary Guarantor, any Indebtedness (whether outstanding on the Initial Funding Date or thereafter Incurred) which is expressly subordinated or junior in right of payment pursuant to (c) a written agreement to the Loan Guarantee of such Subsidiary Guarantor. continuing operations before income taxes, extraordinary items and cumulative effect of a change in accounting principle of the Restricted Subsidiary exceeds 10% of such Subordinated Shareholder Funding income of the Borrower and the Restricted Subsidiaries on a consolidated basis for the Borrower by any Parent, any Affiliate of any Parent or any Permitted Holder or any Affiliate most recently completed fiscal year. thereof, in exchange for or pursuant to any security, instrument or agreement other than Capital Stock, in each case issued to and held by any of the foregoing Persons, together with provided that, for the avoidance of doubt, the Subsidiary Revolver Borrower shall also be any such security, instrument or agreement and any other security or instrument other than deemed a Significant Subsidiary. Capital Stock issued in payment of any obligation under any Subordinated Shareholder Funding; provided, however, that such Subordinated Shareholder Funding: SFS Business -related financing activities by making loans that are secured by works of art. (a) does not mature or require any amortization, redemption or other repayment of principal or any sinking fund payment prior to the first anniversary of the Stated SFS Business Transfer Maturity of the Initial Term Loans (other than through conversion or exchange of Business from the Borrower to other entities (which will include the sale of the existing such funding into Capital Stock (other than Disqualified Stock) of the Borrower or portfolio of loans of the SFS Business and will include the Target being retained to continue any funding meeting the requirements of this definition) or the making of any such 78 79 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
payment prior to the first anniversary of the Stated Maturity of the Initial Term Loans (ii) such Person or any Subsidiary of such Person is a controlling general partner is restricted by any Intercreditor Agreement, an Additional Intercreditor Agreement or or otherwise controls such entity. another intercreditor agreement; Subsidiary Guarantee (b) does not require, prior to the first anniversary of the Stated Maturity of the Initial Term Loans, payment of cash interest, cash withholding amounts or other cash gross- Subsidiary Guarantor ups, or any similar cash amounts or the making of any such payment prior to the first the Loans and shall include, for the avoidance of doubt, the Subsidiary Revolver Borrower. anniversary of the Stated Maturity of the Initial Term Loans is restricted by any Intercreditor Agreement, an Additional Intercreditor Agreement or another Tax Sharing Agreement intercreditor agreement; -length terms entered into with any Parent or Unrestricted Subsidiary, as the same may be amended, supplemented, waived or otherwise modified from (c) contains no change of control or similar provisions and does not accelerate and has no time to time in accordance with the terms thereof and of this Agreement. right to declare a default or event of default or take any enforcement action or otherwise require any cash payment, in each case, prior to the date that is six months Temporary Cash Investments following the Stated Maturity of the Initial Term Loans or the payment of any amount as a result of any such action or provision or the exercise of any rights or enforcement (a) any investment in action, in each case, prior to the date that is six months following the Stated Maturity (i) direct obligations of, or obligations Guaranteed by, (i) the United States of of the Initial Term Loans, is restricted by any Intercreditor Agreement, an Additional America, (ii) Canada, (iii) the United Kingdom, (iv) any European Union Intercreditor Agreement or another Intercreditor Agreement; member state, (v) Switzerland, (vi) any country in whose currency funds are (d) does not provide for or require any security interest or encumbrance over any asset of being held specifically pending application in the making of an investment or the Borrower or any of the Restricted Subsidiaries; and capital expenditure by the Borrower or a Restricted Subsidiary in that country with such funds or (vii) any agency or instrumentality of any such country or (e) pursuant to its terms or to any Intercreditor Agreement, an Additional Intercreditor member state, or Agreement or another intercreditor agreement, is fully subordinated and junior in right of payment to the Loans pursuant to subordination, payment blockage and (ii) direct obligations of any country recognized by the United States of America enforcement limitation terms which are customary in all material respects for similar - funding or are no less favourable in any material respect to the Secured Parties than case, the equivalent of such rating by such organization or, if no rating of those contained in the Closing Date Intercreditor Agreement as in effect on the Initial Funding Date. Nationally Recognized Statistical Rating Organization); Subsidiary (b) overnight bank deposits, and investments in time deposit accounts, certificates of (a) any corporation, association, or other business entity (other than a partnership, joint banks, similar instruments) maturing not more than one year after the date of venture, limited liability company or similar entity) of which more than 50% of the acquisition thereof issued by: total ordinary voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or (i) any institution authorized to operate as a bank in any of the countries or trustees thereof is at the time of determination owned or controlled, directly or member states referred to in sub-clause (a)(i) above, or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a (ii) any bank or trust company organized under the laws of any such country or combination thereof; or member state or any political subdivision thereof, (b) any partnership, joint venture, limited liability company or similar entity of which: in each case, having capital and surplus aggregating in excess of $250 million (i) more than 50% of the capital accounts, distribution rights, total equity and (or the foreign currency equivalent thereof) and whose long-term debt is rated voting interests or general or limited partnership interests, as applicable, are - by Fitch (or, in either case, the owned or controlled, directly or indirectly, by such Person or one or more of equivalent of such rating by such organization or, if no rating of S&P, the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership interests or Recognized Statistical Rating Organization) at the time such Investment is otherwise; and made; 80 81 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
(c) repurchase obligations with a term of not more than 30 days for underlying securities Transactions the Acquisition, the issuance of the Senior Secured Notes, the of the types described in clause (a) or (b) above entered into with a Person meeting borrowing of Loans under this Agreement on or prior to the Closing Date and the issuance of the qualifications described in clause (b) above; any Letters of Credit hereunder on the Closing Date, the Existing Facilities Refinancing, the Change of Control Tender, the Real Estate Portfolio Transfer, the Permitted Sale and (d) Investments in commercial paper, maturing not more than 270 days after the date of Leaseback Transactions, the SFS Business Transfer and in each case, the application of acquisition, issued by a Person (other than the Borrower or any of its Subsidiaries), proceeds thereof and the consummation of any other transactions in connection with the - foregoing (including in connection with the Acquisition Agreement and the payment of the A- - fees, costs and expenses incurred in connection with any of the foregoing) and as otherwise higher) according to Fitch (or, in either case, the equivalent of such rating by such disclosed in Offering Memorandum. such rating by any Nationally Recognized Statistical Rating Organization); Uniform Commercial Code (e) Investments in securities maturing not more than one year after the date of acquisition Unrestricted Subsidiary issued or fully Guaranteed by any state, commonwealth or territory of the United States of America, Canada, the United Kingdom, Switzerland, any European Union (a) any Subsidiary of the Borrower that at the time of determination is an Unrestricted member state or by any political subdivision or taxing authority of any such state, Subsidiary (as designated by the Board of Directors of the Borrower in the manner - provided below); - the equivalent of such (b) any Initial Funding Date Unrestricted Subsidiaries (until any such Subsidiary is equivalent of such rating by any Nationally Recognized Statistical Rating designated as a Restricted Subsidiary in the manner provided below or is no longer a Organization); Subsidiary of the Borrower); and (f) bills of exchange issued in the United States of America, Canada, Switzerland, the (c) any Subsidiary of an Unrestricted Subsidiary. United Kingdom, or a member state of the European Union eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent); The Board of Directors of the Borrower may designate any Subsidiary of the Borrower (including any newly acquired or newly formed Subsidiary or a Person (g) any money market deposit accounts issued or offered by a commercial bank organized becoming a Subsidiary through merger, consolidation or other business combination under the laws of a country that is a member of the Organization for Economic Co- transaction, or Investment therein; but other than the Subsidiary Revolver Borrower) operation and Development, in each case, having capital and surplus in excess of to be an Unrestricted Subsidiary only if: $250 million (or the foreign currency equivalent thereof) or whose long term debt is (a) such Subsidiary or any of its Subsidiaries does not own any Capital Stock or - Indebtedness of, or own or hold any Lien on any property of, the Borrower or any other Subsidiary of the Borrower which is not a Subsidiary of the Subsidiary to be so then exists, the equivalent of such rating by any Nationally Recognized Statistical designated or otherwise an Unrestricted Subsidiary; and Rating Organization) at the time such Investment is made; (b) such designation and the Investment of the Borrower and the Restricted Subsidiaries (h) investment funds investing 95% of their assets in securities of the type described in in such Subsidiary complies with Section 4.05 hereof. clauses (a) through (g) above (which funds may also hold reasonable amounts of cash pending investment and/or distribution); and Any such designation by the Board of Directors of the Borrower shall be evidenced to the Administrative Agent by filing with the Administrative Agent a copy of the (i) investments in money market funds complying with the risk limiting conditions of resolution of the Board of Directors of the Borrower giving effect to such designation Rule 2a-7 (or any successor rule) of the SEC under the U.S. Investment Company Act tificate certifying that such designation complies with the of 1940, as amended. foregoing conditions. Total Assets The Board of Directors of the Borrower may designate any Unrestricted Subsidiary to Subsidiaries as shown on the most recent consolidated balance sheet of the Borrower be a Restricted Subsidiary; provided that immediately after giving effect to such prepared on the basis of GAAP prior to the relevant date of determination calculated to give designation (1) no Default or Event of Default would result therefrom and (2) (x) the pro forma effect to any Purchase and Sales that have occurred subsequent to such period, Borrower could Incur at least $1.00 of additional Indebtedness under Section 4.04(a) including any such Purchase to be made with the proceeds of the Indebtedness giving rise to or (y) the Consolidated Net Leverage Ratio would be no higher than it was the need to calculate Total Assets. immediately prior to giving effect to such designation, in each case, on a pro forma basis taking into account such designation. Any such designation by the Board of 82 83 77626057_8 77626057_8 EU-DOCS\25939615.7 EU-DOCS\25939615.7
Directors shall be evidenced to the Administrative Agent by promptly providing the Schedule 1.01 Administrative Agent with a copy of the resolution of the Board of Directors giving complied with the foregoing provisions. Non-U.S. Security Documents Voting Stock Person then outstanding and normally entitled to vote in the election of directors. Wholly Owned Subsidiary 1. An English law governed debenture, by and among the U.K. Loan Parties and the unt of shares Collateral Agent. required to be owned by other Persons pursuant to applicable law, regulation or to ensure limited liability and (b) in the case of a Receivables Entity, shares held by a Person that is not 2. An English law governed mortgage over shares, to be granted by an Affiliate of the Borrower solely for the purpose of permitting such Person (or such over shares in Oatshare Ltd. and York UK Holdco International Limited respectively in favor of the Collateral Agent. Receivables Entity, including without limitation the institution of bankruptcy, insolvency or other similar proceedings, any merger or dissolution, and any change in charter documents or 3. A Hong Kong law governed debenture, by and among the Loan Parties organized in Hong Kong and the Collateral Agent. other customary events) is owned by that Person directly or (2) indirectly by a Person that satisfies the requirements of clause (1) of this definition. 4. York Property orporate offices of the Target as well as 5. A Luxembourg law governed receivables pledge agreement to be granted by York Luxembourg Holdings International S.Γ x.x. over the intercompany receivables owed by its Restricted Subsidiaries in favor of the Collateral Agent. 6. A Luxembourg law governed share pledge agreement to be granted by York UK Holdco International Limited over shares in York Luxembourg Holdings International S.Γ x.x. in favor of the Collateral Agent. 7. A New York law governed share pledge supplement to be granted by York Luxembourg Holdings International S.Γ x.x. over shares in York Holdings International, Inc. in favor of the Collateral Agent. 84 77626057_8 77793112_6 EU-DOCS\25939615.7 EU-DOCS\26043672.7
SCHEDULE 1.09 obstacle or otherwise such guarantee or Security Document shall be subject to such limit; AGREED SECURITY PRINCIPLES (ii) a key factor in determining whether or not a guarantee or security will be taken (and in respect of the security, the extent of its perfection and/or 1. Agreed Security Principles registration) is the applicable time and cost (including adverse effects on non-U.S. taxes, interest deductibility, stamp duty, registration taxes, (a) The guarantees and security to be provided under the Loan Documents by any notarial costs and all applicable legal fees) which will not be Non-U.S. Loan Party or by any U.S. Loan Party with respect to Collateral disproportionate to the benefit accruing to the Secured Parties of located outside the United States, any state thereof or the District of Columbia obtaining such guarantee or security (as reasonably determined by the will be given in accordance with the security principles set out in this Schedule Borrower); Agreed Security Principles bt, the Agreed Security Principles shall not apply to any guarantees to be provided under the (iii) members of the Group will not be required to give guarantees or enter Loan Documents by any U.S. Loan Party, nor to any security to be provided by into security documents if they are not wholly owned by another any U.S. Loan Party under a Security Document which is governed by the laws member of the Group or if it is not within the legal capacity of the of the U.S., any state thereof or the District of Columbia. Any security given by relevant members of the Group or if it would conflict with the fiduciary a Non-U.S. Loan Party over shares in a Domestic Subsidiary or other assets or statutory duties of their directors or contravene any applicable legal, located in the United States, any state thereof or the District of Columbia shall regulatory or contractual prohibition or restriction or have the potential be subject to the Agreed Security Principles and further be subject to the Credit to result in a material risk of personal or criminal liability for any Agreement. This Schedule identifies the Agreed Security Principles and director or officer of or for any member of the Group, provided that, to addresses the manner in which the Agreed Security Principles will impact on the extent requested by the Administrative Agent before signing any and determine the extent of the guarantees and security proposed to be provided applicable security document or accession certificate, the relevant in relation to the Obligations. For purposes of these Agreed Security Principles, member of the Group shall use commercially reasonable efforts (but Acceleration Event without incurring material cost and without adverse impact on Obligations under Section 7.01 of the Credit Agreement. relationships with third parties) to overcome any such obstacle or otherwise such security document shall be subject to such limit; (b) The Agreed Security Principles embody a recognition by all parties that there may be certain legal and practical difficulties in obtaining effective or (iv) the maximum granted or secured amount may be limited to minimize commercially reasonable guarantees and/or security from all relevant members stamp duty, notarization, registration or other applicable fees, taxes and of the group constituted by Parent Guarantor, the Borrower, and the Restricted duties where the benefit of increasing the guaranteed or secured amount Group is disproportionate to the level of such fee, taxes and duties; agreed that guarantees and security will be granted by those members. In particular: (v) where a class of assets to be secured includes material and immaterial assets, if the cost of granting security over the immaterial assets is (i) general legal and statutory limitations, regulatory restrictions, financial disproportionate to the benefit of such security, security will be granted assistance, corporate benefit, fraudulent preference, equitable over the material assets only; (vi) it is expressly acknowledged that it may be either impossible or impractical to create security over certain categories of assets in which rules, tax restrictions, retention of title claims, employee consultation or event security will not be taken over such assets; approval requirements and similar principles may limit the ability of a (vii) any asset subject to a legal requirement, contract, lease, license, member of the Group to provide a guarantee or security or may require instrument or other third party arrangement, which may prevent or that the guarantee or security be limited as to amount or otherwise and, condition the asset from being charged, secured or being subject to the if so, the guarantee or security will be limited accordingly, provided that, applicable Security Document (including requiring a consent of any to the extent requested by the Administrative Agent before signing any third party, supervisory board or works council (or equivalent)) and any applicable Security Document, joinder, supplement or accession asset which, if subject to the applicable Security Document, would give certificate, the relevant member of the Group shall use commercially a third party the right to terminate or otherwise amend any rights, reasonable efforts (but without incurring material cost and without benefits and/or obligations with respect to any member of the Group in adverse impact on relationships with third parties) to overcome any such respect of the asset or require the grantor to take any action (other than the granting and perfection of the guarantee and security interest itself) 2 77612334_6 77612334_6 EU-DOCS\26056948.5 EU-DOCS\26056948.5
materially adverse to the interests of the Group or any member thereof, costs, fees or expenses that result from any assignment or transfer by a in each case will be excluded from a guarantee or Security Document Secured Party); provided that the Group shall use commercially reasonable efforts to obtain consent to charging any asset (where otherwise prohibited) if the (xii) no title investigations or other diligence on assets will be required and Administrative Agent specifies prior to the date of the applicable no title insurance will be required; Security Document, joinder, supplement or accession certificate that the asset is material and the Borrower is satisfied (acting reasonably) that (xiii) security will not be required over any assets subject to security in favor such commercially reasonable efforts will not involve placing of a third party or any cash constituting regulatory capital or customer relationships with third parties in jeopardy save that, unless prohibited, cash (and shall be excluded from any relevant Security Document); this shall not prevent security from being given over any receipt or recovery under the relevant contract, lease or license; (xiv) to the extent legally effective, all security will be given in favor of the Collateral Agent and not the Secured Parties individually (with the (viii) the giving of a guarantee, the granting of security and the registration Collateral Agent to hold one set of security documents for all the and/or the perfection of the security granted will not be required if it Secured Parties); would have a material adverse effect on the ability of the relevant member of the Group to conduct its operations and business in the (xv) will be used where necessary; and ordinary course as otherwise permitted by the Loan Documents (xvi) the Secured Parties (or any agent or similar representative appointed by (including dealing with the secured assets and all contractual them at the relevant time) will not be able to exercise any power of counterparties or amending, waiving or terminating (or allowing to attorney or set-off granted to them under the terms of the Loan lapse) any rights, benefits or obligations, in each case prior to an Documents prior to the occurrence of an Acceleration Event which is Acceleration Event which is continuing), and any requirement under the continuing (unless, in the case of a power of attorney the relevant Loan Agreed Security Principles to seek consent of any Person or take or not Party has failed to comply with a further assurance or perfection take any other action shall be subject to this paragraph (viii); obligation (and any grace period applicable thereto has expired)). (ix) any Security Document will only be required to be notarized if required (c) Notwithstanding any term of any Loan Document, by law in order for the relevant security to become effective or admissible in evidence; (i) no Obligation under any Loan Document, Swap Contract or Treasury Services Agreement may be guaranteed by any Excluded Subsidiary (x) no guarantee from, or security will be required to be given by, Persons (other than any Excluded Subsidiary referred to under clause (10) of the or over (and no consent shall be required to be sought with respect to) definition thereof) or secured by any Excluded Asset (other than any assets which are required to support acquired Indebtedness to the extent Excluded Asset referred to under clause (n) of the definition thereof); such acquired Indebtedness is permitted by the Credit Agreement to and remain outstanding after an acquisition. No member of a target group acquired pursuant to an acquisition not prohibited by the Credit (ii) Security by Non-U.S. Loan Parties shall only by required to be provided: Agreement shall be required to become a Guarantor or grant security in favor of the Obligations if prevented by the terms of the documentation (A) in respect of any U.K. Loan Party, pursuant to an English law governing that acquired Indebtedness; no security will be granted over debenture (in respect of, and including a floating charge over, all any asset secured for the benefit of any Indebtedness permitted to be of its assets and an English law share mortgage (in respect of the incurred under Section 4.04 of Annex I to the Credit Agreement (other shares in that Loan Party and a foreign law share pledge (in than Indebtedness constituting Obligations) and/or to the extent respect of the shares held by that U.K. Loan Party in any other constituting Liens permitted to be incurred under Section 4.06 of Annex Restricted Subsidiary located in a Covered Jurisdiction), and no I to the Credit Agreement (other than Liens securing the Obligations); collateral over any other asset or class of asset shall be required; (xi) to the extent possible and unless required by applicable Law, there (B) in respect of any Loan Party organized under the laws of Hong should be no action required to be taken in relation to the guarantees or Kong, pursuant to a Hong Kong law debenture (in respect of, and security when any lender assigns or transfers any of its participation to including a floating charge over, all of its assets) and a Hong a new lender (and, unless explicitly agreed to the contrary in the Credit Kong law share mortgage (in respect of the shares in that Loan Agreement, no member of the Group shall bear or otherwise be liable Party), and no collateral over any other asset or class of asset for any taxes, any notarial, registration or perfection fees or any other shall be required; and 3 4 77612334_6 77612334_6 EU-DOCS\26056948.5 EU-DOCS\26056948.5
(C) in respect of any Loan Party organized under the laws of 4. Terms of security documents Luxembourg, pursuant to a Luxemburg law governed receivables pledge agreement over the intercompany receivables The following principles will be reflected in the terms of any security taken in favor of owed by Restricted Subsidiaries, a Luxembourg law governed the Obligations: share pledge agreement in respect of shares of that Luxembourg Loan Party and a foreign law share pledge (in respect of the (a) the security will be first ranking, to the extent possible; shares held by that Loan Party in any other Restricted Subsidiary located in any other Covered Jurisdiction), and no collateral over (b) security will not be enforceable until the occurrence of an Acceleration Event; any other asset or class of asset shall be required; and (c) the beneficiaries of the security or the Administrative Agent will only be able (D) in respect of any Non-U.S. Loan Party organized under the laws to exercise a power of attorney following the occurrence of an Acceleration of any other Covered Jurisdiction, over such assets or classes of Event which is continuing or where the relevant Loan Party has failed to comply asset as mutually agreed between the Borrower and the with a further assurance or perfection obligation (and any grace period Administrative Agent. applicable thereto has expired); 2. Guarantees (d) the Security Documents should only operate to create security rather than to impose new commercial obligations or repeat clauses in other Loan Documents; Subject to the guarantee limitations set out in the Loan Documents, each guarantee will accordingly (i) they should not contain additional representations, undertakings be an upstream, cross-stream and downstream guarantee for all liabilities of the Loan or indemnities (including, without limitation, in respect of insurance, Parties under the Loan Documents in accordance with, and subject to, the requirements information, maintenance or protection of assets or the payment of fees, costs of these Agreed Security Principles in each relevant jurisdiction (references to and expenses) unless these are the same as or consistent with those contained in the Credit Agreement and are required for the creation or perfection of security secure the guarantee obligations of the relevant security provider or, if such security is (or to maintain the security interest created thereby); and (ii) nothing in any provided on a third party basis, all liabilities of the Loan Parties under the Loan Security Document shall (or be construed to) prohibit any transaction, matter or Documents, in each case in accordance with, and subject to, the requirements of these other step (or a Grantor taking or entering into the same or dealing in any Agreed Security Principles in each relevant jurisdiction. manner whatsoever in relation to any asset (including all rights, claims, benefits, proceeds and documentation, and contractual counterparties in relation 3. Governing law and scope thereto)) the subject of (or expressed to be the subject of) the security agreement if not prohibited by the terms of the other Loan Documents; (a) To the extent otherwise consistent with these Agreed Security Principles and subject to the provisions of the Loan Documents, guarantees and security will (e) no security will be granted over parts, stock, moveable plant, equipment or be provided only by members of the Group organized in the United States, any receivables if it would require labelling, segregation or periodic listing or state thereof or the District of Columbia, England and Wales, Luxembourg, specification of such parts, stock, moveable plant, equipment or receivables; Hong Kong and other jurisdictions notified by the Borrower to the Administrative Agent and mutually agreed by the Borrower and the (f) in no event shall control agreements (or perfection by control or similar Covered Jurisdictions arrangements) be required with respect to any assets (including deposit or is organized in a Covered Jurisdiction, such jurisdiction shall cease to be a securities accounts) (unless the Loan Documents expressly provide for any Covered Jurisdiction. specific account (by reference to its purpose) to be subject to specific restrictions on use); (b) All security (other than share security over members of the Group incorporated in a Covered Jurisdiction and security over any intercompany loans between (g) security will, where possible and practical, automatically create security over members of the Group) will be governed by the law of the jurisdiction of future assets of the same type as those already secured; where applicable Law incorporation of the applicable Grantor and no action in relation to security requires supplemental pledges or notices to be delivered in respect of future (including any perfection step, further assurance step, filing or registration) will acquired assets in order for effective security to be created over that class of be required in jurisdictions where the Grantor is not incorporated. Share security asset, such supplemental pledges or notices will be provided only upon request over any Subsidiary incorporated in a Covered Jurisdiction will be governed by of the Administrative Agent and at intervals no more frequent than annually the law of that Covered Jurisdiction. Any security over an intercompany loan (unless required more frequently under applicable Law); and between any members of the Group will be governed by either (i) the governing law of the relevant intercompany loan document or (ii) the governing law of the (h) each security document must contain a clause which records that if there is a place of incorporation of the relevant lender of the intercompany loan, in each conflict between any Security Document and the Credit Agreement or any case, only to the extent such governing law is within a Covered Jurisdiction. Intercreditor Agreement then (to the fullest extent permitted by law) the 5 6 77612334_6 77612334_6 EU-DOCS\26056948.5 EU-DOCS\26056948.5
provisions of the Credit Agreement or (as applicable) such Intercreditor A member of the Group may grant security over its material insurance policies Agreement will take priority over the provisions of such Security Document. (excluding any third party liability or public liability insurance and any directors and officers insurance provided that the relevant insurance policy allows security to be so 5. Bank accounts granted). Notice of any security interest over insurance policies will only be served on an insurer of the Group assets upon written request of the Administrative Agent, which (a) If a Loan Party grants security over its material bank accounts it will be free to may only be given after the occurrence of an Acceleration Event which is continuing. deal, operate and transact business in relation to those accounts (including Prior to an Acceleration Event which is continuing, no loss payee or other endorsement opening and closing accounts) until the occurrence of an Acceleration Event will be made on the insurance policy and no Secured Party will be named as coinsured. which is continuing (unless the Loan Documents expressly provide for any specific account (by reference to its purpose) to be subject to specific 8. Intellectual property restrictions on use). For the avoidance of doubt, (unless the Loan Documents expressly provide for any specific account (by reference to its purpose) to be (a) No security will be granted over any intellectual property which cannot be secured under the terms of the relevant licensing agreement. bank accounts, cash or receivables or any obligation to hold or pay cash or receivables in a particular account until the occurrence of an Acceleration Event (b) If security is granted over the relevant material intellectual property, the grantor which is continuing. shall be free to deal with, use, license and otherwise commercialize those assets in the course of its business (including allowing its intellectual property to lapse (b) if no longer material to its business) until an Acceleration Event which is security and if possible without disrupting operation of the account, notice of continuing. the security will be served on the account bank in relation to applicable accounts within 10 Business Days of the date of the applicable Security Document (or (c) Notice of any security interest over intellectual property will only be served on accession thereto) and the applicable Grantor will use its commercially a third party from whom intellectual property is licensed upon written request reasonable efforts to obtain an acknowledgement of that notice within 20 of the Administrative Agent, which may only be given after the occurrence of Business Days of service. If the applicable Grantor has used its commercially an Acceleration Event which is continuing. Subject to the following sentence, reasonable efforts but has not been able to obtain acknowledgement or no intellectual property security will be required to be registered under the law acceptance its obligation to obtain acknowledgement will cease on the expiry of that security document, the law where the grantor is regulated, or at any of that 20 Business Day period. Irrespective of whether notice of the security is applicable supra-national registry. If required under local law for the perfection required for perfection, if the service of notice would prevent any member of of the security and subject always to the general principles set out in these the Group from using a bank account in the course of its business no notice of Agreed Security Principles, security over intellectual property will be registered security will be served until the occurrence of an Acceleration Event which is in the registry of the jurisdiction in which the grantor of the security is resident continuing. or at a relevant supra-national registry (such as the European Union). Security (c) Any security over bank accounts will be subject to any security interests in favor the Group will not be required to procure any changes to, or corrections of of the account bank which are created either by law or in the standard terms and filings on, external registers. conditions of the account bank. No Grantor will be required to change its banking arrangements or standard terms and conditions in connection with the 9. Receivables granting of bank account security. If a Loan Party grants security over any of its receivables it will be free to deal with, (d) If required under applicable Law, security over bank accounts will be registered amend, waive or terminate those receivables in the course of its business until the subject to the general principles set out in these Agreed Security Principles. occurrence of an Acceleration Event which is continuing. No notice of security may be prepared or served until the occurrence of an Acceleration Event which is continuing. 6. Fixed assets Any list of receivables will not include details of the underlying contracts and will not be required to be updated. If required under applicable Law, security over receivables If a Loan Party grants security over its material fixed assets it will be free to deal with will be registered subject to the general principles set out in these Agreed Security those assets in the course of its business until the occurrence of an Acceleration Event Principles. which is continuing. No notice, whether to third parties or by attaching a notice to the fixed assets, will be prepared or given until the occurrence of an Acceleration Event 10. Shares which is continuing. (a) Security over shares will be limited to those over a Loan Party or a Restricted 7. Insurance policies Subsidiary other than an Immaterial Subsidiary, or an Excluded Subsidiary 7 8 77612334_6 77612334_6 EU-DOCS\26056948.5 EU-DOCS\26056948.5
(other than to the extent such shares would not constitute an Excluded Asset Schedule 2.01 pursuant to clause (l) of the definition thereof). Lenders and Commitments (b) Until an Acceleration Event has occurred and is continuing, the legal title of the shares will remain with the relevant Grantor (unless transfer of title on granting such security is customary in the applicable jurisdiction) and any Grantor of share security will be permitted to retain and to exercise voting rights and On file with Administrative Agent. powers in relation to any shares and other related rights charged by it and receive, own and retain all assets and proceeds in relation thereto without restriction or condition provided that any exercise of rights does not materially adversely affect the validity or enforceability of the security over the shares or cause an Event of Default to occur. (c) Where customary and applicable as a matter of law, on, or as soon as reasonably practicable following execution of the applicable Security Document, joinder, supplement or accession certificate, the applicable share certificate (or other documents evidencing title to the relevant shares) and a stock transfer form executed in blank (or applicable Law equivalent) will be provided to the Administrative Agent. (d) Unless the restriction is required by law or regulation, the constitutional documents of the Loan Party or Restricted Subsidiary whose shares are to be charged will be amended to remove any restriction on the transfer or the registration of the transfer of the shares on the taking or enforcement of the security granted over them. 9 77612334_6 77793112_6 EU-DOCS\26056948.5 EU-DOCS\26043672.7
Schedule 3.01 Schedule 3.08(c) Organizational Information of Loan Parties Existing Indebtedness (as of the Effective Date) None. Name Type Jurisdiction Org. No. Tax ID BidFair MergeRight Inc. Corporation Delaware 7459106 00-0000000 BidFair Holdings Inc. Corporation Delaware 7600729 00-0000000 77793112_6 77793112_6 EU-DOCS\26043672.7 EU-DOCS\26043672.7
Percentage Schedule 5.14(a) Entity Name Type of Entity Jurisdiction Owner Owned Initial U.S. Loan Party LLC Partners Art Agency Partners Holdings LP Limited Delaware Art Agency 100% Percentage Partnership Partners Entity Name Type of Entity Jurisdiction Owner Owned Holdings GP Corporation Delaware N/A N/A LLC SPTC, Inc. Corporation Nevada 100% Art Agency Partners Holdings, LLC Delaware Art Agency 100% Fine Art Holdings, Inc. Corporation Delaware 100% LLC Partners LLC Delaware 100% Holdings LP Corporation Nevada SPTC, Inc. 100% Art Agency Partners Management LLC Delaware Art Agency 100% York Holdings International, Inc. Corporation Delaware York 100% GP, LLC Partners Luxembourg Holdings LLC Holdings Art Agency Partners Management, Limited Delaware Art Agency 50% International L.P. Partnership Partners S.a.r.l. Holdings LLC Corporation New York York Holdings 100% Art Agency 50% International Partners Inc. Management Viyet, LLC LLC Delaware 100% GP, LLC Thread Genius Inc. Corporation Delaware 100% Art Agency Partners Appraisals, LLC Delaware Art Agency 100% Corporation New York 100% LLC Partners Xxxxxxxx.xxx LLC LLC Delaware 100% Holdings LLC 72nd and York, Inc. Corporation New York 100% Art Agency Partners, LLC LLC Delaware Art Agency 100% SIBS, LLC LLC New York 100% Partners York Avenue Development, Inc. Corporation New York 100% Holdings LLC Corporation Michigan 100% Art Agency Partners Advisory, LLC Delaware Art Agency 100% Inc. LLC Partners Xxxxxxxx.xxx Auctions, Inc. Corporation New York 100% Holdings LLC Corporation Delaware 100% Art Agency Partners Investment, LLC Delaware Art Agency 100% Sotheby Xxxxx Xxxxxx Inc. Corporation Delaware 100% LLC Partners Holdings LLC LLC New York 100% Corporation Delaware 100% JSA Art Management LLC LLC Delaware 100% Theta, Inc. Art Agency Partners Holdings GP LLC Delaware Art Agency, 100% 77793112_6 77793112_6 EU-DOCS\26043672.7 EU-DOCS\26043672.7
Exhibit A Account Name: to the Credit Agreement Account #: Attn: ADMINISTRATIVE QUESTIONNAIRE Deal: I. ADMINISTRATIVE QUESTIONNAIRE Please complete the following and return by email to: xxxx.xxxxxx@xx.xxxxxxxxxx.xxx and xxxx.xxxx.xxxxxxx.xxxxxx@xx.xxxxxxxxxx.xxx and your sales representative. Full legal name to appear on signature block: Bank name to appear in any publicity (tombstone): Legal Lending Office Address: Tax ID Number: Contacts: Credit Primary Secondary Name: Address: Phone: Fax: E-mail Legal Counsel Financials Name: Address: Phone: Fax: E-mail Administrative / Operations: Loans Letters of Credit Name: Address: Phone: Fax: E-mail Payment Instructions (Please specify where funds, i.e. interest, letter of credit fees, commitment fees, repayment of loans, should be wired.): Bank Name: Address: ABA#: EU-DOCS\26045402.3 77785246_6 77785246_6 EU-DOCS\26045402.3
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE Title: AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] By: Name: The terms set forth in this Assignment are hereby agreed to: Title:]7 ASSIGNOR: [NAME OF ASSIGNOR] By: Name: Title: ASSIGNEE: [NAME OF ASSIGNEE] By: Name: Title: Consented to and Accepted: [BNP Paribas, as Administrative Agent [and][,] [L/C Issuer] [and] [Swing Line Lender] By: Name: Title:]4 [Xxxxxxx Xxxxx Bank USA, as L/C Issuer] By: Name: Title:]5 [Consented to: 6 By: Name: 4 If required pursuant to Section 9.04(b) of the Credit Agreement. 5 If required pursuant to Section 9.04(b) of the Credit Agreement. 6 Include if assignment is executed in connection with the Revolving Commitment and after the appointment of the Subsidiary Revolver Borrower. 7 If required pursuant to Section 9.04(b) of the Credit Agreement. 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
Exhibit C-1 (C) Class of Borrowing:10 to the Credit Agreement (D) Type of Borrowing:11 FORM OF REVOLVING CREDIT BORROWING REQUEST (E) Interest Period and the last day thereof12: BNP Paribas (F) Funds are requested to be disbursed to the Borrower with: 000 0xx Xxxxxx Xxx Xxxx, XX 00000 Dollars Correspondent Bank (or Account with Institution): Attn: Xxxxxxx Xxxxxx Swift/CHIPS: Tel. 000 000 0000 Account No.: Email: xxxxxxx.xxxxxx@xx.xxxxxxxxxx.xxx Beneficiary: Required reference (if applicable): Attn: Xxxxxx Xxx Tel. 000-000-0000 Email: xxxxxx.xxx@xx.xxxxxxxxxx.xxx The Borrower hereby represents and warrants to the Administrative Agent and the Lenders that, as of the date of the Borrowing, the applicable conditions to lending specified in Section 4.03 of the Credit Agreement have been satisfied. [Date] [Remainder of page intentionally left blank] Ladies and Gentlemen: The undersigned, [BidFair MergeRight Inc.]8 9 a [Delaware][New Borrower , refers to that certain Credit Agreement, dated as of October 2, 2019 (as amended, modified, supplemented or restated from time to time Credit Agreement Lenders BNP Paribas, as administrative agent (including any successor thereto, the Administrative Agent ) for the Lenders and Deutsche Bank Trust Company Americas, as collateral agent (including any successor thereto, the Collateral Agent . Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The Borrower hereby gives you notice pursuant to Section 2.03 of the Credit Agreement that it requests a Borrowing under the Credit Agreement, and in connection therewith sets forth below the terms on which such Borrowing is requested to be made: (A) Date of Borrowing (which is a Business Day): (B) Principal Amount of Borrowing: Dollars: _______________________ 10 Specify Borrowing of Initial Revolving Credit Loans, Incremental Revolving Credit Loans, Revolving Credit Loans under any Extended Revolving Credit Commitment or Refinancing Revolving Loans. 11 If applicable, specify Eurodollar Borrowing or ABR Borrowing. 8 Only if Notice of Borrowing is executed before the Acquisition. 12 9 Select as applicable. and Section 2.02 of the Credit Agreement. 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
(E) Funds are requested to be disbursed to the Borrower IN WITNESS WHEREOF, the undersigned has caused this Borrowing Request to be duly executed and delivered by its officer as of the date first above written. Dollars Correspondent Bank (or Account with Institution): [[BidFair MergeRight Inc.] 17 Swift/CHIPS: ]18 Account No.: Beneficiary: Required reference (if applicable): By:_______________________________ Name: Title: The Borrower hereby represents and warrants to the Administrative Agent and the Lenders that, as of the date of the Borrowing, the applicable conditions to lending specified in Section 4.03 of the Credit Agreement have been satisfied. [Remainder of page intentionally left blank] 17 Only if Notice of Borrowing is executed before the Acquisition. 18 Select as applicable. 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
Exhibit C-3 (D) Type of Borrowing:22 to the Credit Agreement (E) Interest Period and the last day FORM OF TERM BORROWING REQUEST thereof23: BNP Paribas (F) Funds are requested to be disbursed to the Borrower 000 0xx Xxxxxx Xxx Xxxx, XX 00000 Dollars Correspondent Bank (or Account with Institution): Attn: Xxxxxxx Xxxxxx Swift/CHIPS: Tel. 000 000 0000 Account No.: Email: xxxxxxx.xxxxxx@xx.xxxxxxxxxx.xxx Beneficiary: Required reference (if applicable): Attn: Xxxxxx Xxx Tel. 000-000-0000 Email: xxxxxx.xxx@xx.xxxxxxxxxx.xxx The Borrower hereby represents and warrants to the Administrative Agent and the [Date] Lenders that, as of the date of the Borrowing, the applicable conditions to lending specified in Section 4.03 of the Credit Agreement have been satisfied. Ladies and Gentlemen: [Remainder of page intentionally left blank] The undersigned, [BidFair MergeRight Inc.] 19 20 a Delaware Borrower , refers to that certain Credit Agreement, dated as of October 2, 2019 (as amended, modified, supplemented or restated from time to time Credit Agreement Lenders BNP Paribas, as administrative agent (including any successor thereto, the Administrative Agent ) for the Lenders and Deutsche Bank Trust Company Americas, as collateral agent (including any successor thereto, the Collateral Agent . Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The Borrower hereby gives you notice pursuant to Section 2.03 of the Credit Agreement that it requests a Borrowing under the Credit Agreement, and in connection therewith sets forth below the terms on which such Borrowing is requested to be made: (A) Date of Borrowing (which is a Business Day): (B) Principal Amount of Borrowing: Dollars: ________________________ (C) Class of Borrowing:21 19 Only if Notice of Borrowing is executed before the Acquisition. 20 Select as applicable. 22 If applicable, specify Eurodollar Borrowing or ABR Borrowing. 21 Specify Borrowing of Initial Term Loans, Incremental Term Loans, Extended Term Loans or Refinancing 23 Term Loans. and Section 2.02 of the Credit Agreement. 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
(b) It is the intention of the Secured Parties of each Series that the holders of Additional Collateral Agent (a) for so long as the Initial Additional Obligations Obligations of such Series (and not the Secured Parties of any other Series) bear the risk of (i) any are the only Series of Additional Obligations, the Initial Additional Collateral Agent and determination by a court of competent jurisdiction that (A) any of the Obligations of such Series (b) thereafter, the Collateral Agent for the Series of Additional Obligations that constitutes the are unenforceable under applicable law or are subordinated to any other obligations (other than largest outstanding principal amount of any then outstanding Series of Additional Obligations with another Series of Obligations), (B) any of the Obligations of such Series do not have an enforceable respect to any Shared Collateral. security interest in any of the Collateral securing any other Series of Obligations and/or (C) any intervening security interest exists securing any other obligations (other than another Series of Additional Obligations Obligations) on a basis ranking prior to the security interest of such Series of Obligations but junior (including the Initial Additional Secured Parties) pursuant to the terms of any Additional to the security interest of any other Series of Obligations and (ii) the existence of any Collateral Agreement (including the Initial Additional Agreement), including, without limitation, all amounts for any other Series of Obligations that is not Shared Collateral (any such condition referred to in in respect of any principal, premium, interest (including any interest accruing subsequent to the the foregoing clause (i) or (ii) with respect t Impairment commencement of a Bankruptcy Case at the rate provided for in the respective Additional Series). In the event of any Impairment with respect to any Series of Obligations, the results of Agreement, whether or not such interest is an allowed claim under any such proceeding or under such Impairment shall be borne solely by the holders of such Series of Obligations, and the rights applicable state, federal or foreign law), penalties, fees, expenses, indemnifications, of the holders of such Series of Obligations (including the right to receive distributions in respect reimbursements, damages and other liabilities, and guarantees of the foregoing amounts. of such Series of Obligations pursuant to Section 2.01) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the Series Additional Secured Parties of such Obligations subject to such Impairment. Additionally, in the event the Obligations of any Additional Authorized Representative and shall include the Initial Additional Secured Parties. Series are modified pursuant to applicable law (including pursuant to Section 1129 of the Bankruptcy Code), any reference to such Obligations or the Secured Credit Documents governing Additional Security Documents means the Initial Additional Security Documents and such Obligations shall refer to such Obligations or such documents as so modified. any collateral agreement, security agreement or any other document now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure the (c) Capitalized terms used and not otherwise defined herein shall have the meanings Additional Obligations. As Additional Senior Class Debt Section 6.13. used in this Agreement, the following terms have the meanings specified below: Additional Senior Class Debt Collateral Agent igned to such term in Acceleration Event Section 6.13. Representative in relation thereto has exercised any acceleration right to demand (or any Additional Senior Class Debt Parties Section acceleration provision being automatically invoked which requires) repayment of any Obligations 6.13. outstanding thereunder, in each case under and in accordance with the terms of the related Secured Credit Documents for such Series following the occurrence of an Event of Default which is Additional Senior Class Debt Representative continuing (in each case other than placing amounts on demand or cancelling undrawn Section 6.13. commitments, but including making a demand for repayment of amounts placed on demand). Agreement Additional Agreement al Additional Obligations or any Agreement. Series of Additional Senior Class Debt, the notes, indentures, credit agreements, loan agreements, security documents and other operative agreements or instruments evidencing or governing such Applicable Authorized Representative (a) until the earlier of (i) the Discharge of indebtedness and liens securing such indebtedness, including the Initial Additional Agreement and the Credit Agreement Obligations and (ii) the Non-Controlling Authorized Representative the Additional Security Documents and each other agreement entered into for the purpose of Enforcement Date, the Credit Agreement Administrative Agent, and (b) from and after the earlier securing the Initial Additional Obligations or any Series of Additional Senior Class Debt; provided of (i) the Discharge of the Credit Agreement Obligations and (ii) the Non-Controlling Authorized that, in each case, the Indebtedness thereunder (other than the Initial Additional Obligations) has Representative Enforcement Date, the Major Non-Controlling Authorized Representative. been designated as a Series of Additional Senior Class Debt pursuant to Section 6.13 hereto. Authorized Representative (a) in the case of any Credit Agreement Obligations Additional Authorized Representative or the Credit Agreement Secured Parties, the Credit Agreement Administrative Agent, (b) in the introductory paragraph to this Agreement. case of the Initial Additional Obligations or the Initial Additional Secured Parties, the Initial Additional Authorized Representative, and (c) in the case of any Series of Additional Obligations 2 3 77660844_6 77660844_6
or Additional Secured Parties that become subject to this Agreement after the date hereof, the Credit Agreement Administrative Agent Authorized Representative named for such Series in the applicable Joinder Agreement. introductory paragraph of this Agreement. Bankruptcy Case ning assigned to such term in Section 2.05(b). Credit Agreement Collateral Agent introductory paragraph of this Agreement. Bankruptcy Code Credit Agreement Obligations Bankruptcy Law any other liquidation, conservatorship, Agreement. bankruptcy, assignment for the benefit of creditors, moratorium, administration, rearrangement, judicial management, receivership, insolvency, reorganization (by way of voluntary arrangement, Credit Agreement Secured Parties scheme of arrangement or otherwise), or similar federal, state or foreign debtor relief laws Agreement. (including under any applicable corporate statute) of the United States or other applicable jurisdictions from time to time in effect. Credit Agreement Security Agreement as of October 2, 2019, among the Grantors party thereto and the Credit Agreement Collateral Capital Stock the Credit Agreement (or any Agent, as amended, restated, supplemented or otherwise modified from time to time. Credit Agreement Security Documents Agreement, the other Security Documents (as defined in the Credit Agreement) and each other Cash Collateralized Obligations g assigned to such term in Section agreement entered into in favor of the Credit Agreement Collateral Agent for the purpose of 2.01(d). securing any Credit Agreement Obligations. Collateral DIP Financing Section 2.05(b). Security Document to secure any of the Obligations. DIP Financing Liens Section 2.05(b). Collateral Agent (a) in the case of any Credit Agreement Obligations, the Credit Agreement Collateral Agent, (b) in the case of the Initial Additional Obligations, the Initial DIP Lenders Section 2.05(b). Additional Collateral Agent, and (c) in the case of any other Series of Additional Obligations that become subject to this Agreement after the date hereof, the Additional Senior Class Debt Collateral Discharge ct to any Shared Collateral and any Series of Obligations, Agent for such Series named in the applicable Joinder Agreement. the date on which such Series of Obligations is no longer secured by such Shared Collateral. The Discharged Controlling Collateral Agent (a) until the earlier of (i) the Discharge of the Credit Agreement Obligations and (ii) the Non-Controlling Authorized Representative Enforcement Discharge of Secured Obligations ge of the Credit Agreement Date, the Credit Agreement Collateral Agent and (b) from and after the earlier of (i) the Discharge Obligations, the Discharge of the Initial Additional Obligations and the Discharge of any of the Credit Agreement Obligations and (ii) the Non-Controlling Authorized Representative Additional Obligations. Enforcement Date, the Additional Collateral Agent. Discharge of the Credit Agreement Obligations Controlling Secured Parties (a) at any time when the Credit Agreement Collateral Collateral, the Discharge of all Credit Agreement Obligations with respect to such Shared Agent is the Controlling Collateral Agent, the Credit Agreement Secured Parties and (b) at any Collateral; provided that the Discharge of the Credit Agreement Obligations shall not be deemed other time, the Series of Secured Parties whose Authorized Representative is the Applicable to have occurred in connection with a Refinancing of such Credit Agreement Obligations with Authorized Representative for such Shared Collateral. Additional Obligations secured by such Shared Collateral under an Additional Agreement which has been designated in writing by the Credit Agreement Administrative Agent to the Additional Credit Agreement among BidFair MergeRight Inc., a Delaware corporation (to be m purposes of this Agreement. a Delaware corporation, on the Closing Date) (together with its successors and assigns, until the satisfaction in full of all the Obligations in accordance with the terms of this Agreement, the Equity Release Proceeds Section 2.04(a). Borrower her parties party thereto from time to time, the Credit Agreement Administrative Agent and the Credit Agreement Collateral Agent. Event of Default arly defined term) as defined in any Secured Credit Document. 4 5 77660844_6 77660844_6
Grantors (b) any liquidation, dissolution, marshalling of assets or liabilities or other winding up that has granted a security interest pursuant to any Secured Credit Documents to secure any of or relating to any Grantor, in each case whether or not voluntary and whether or not involving Obligations. bankruptcy or insolvency and whether or not in a court supervised proceeding; or Guarantee (c) any other proceeding of any type or nature in which substantially all claims of creditors of any Grantor are determined and any payment or distribution is or may be made on account of such claims. Guarantee Release Proceeds Section 2.04(a). Intervening Creditor s the meaning assigned to such term in Section 2.01(a). Guarantors Investor Borrower that has provided a Guarantee in respect of the Obligations pursuant to any Secured in accordance with Section 6.01 hereof, provided that it has not ceased Credit Documents. to be an Investor pursuant to Section 6.01. Impairment Section 1.01(b). Investor Documents accommodation made by an Investor to the Parent Guarantor or other Indebtedness incurred by Initial Additional Agreement Parent Guarantor to an Investor; provided that such loan, financial accommodation or other among, inter alia, the Borrower, the Initial Additional Authorized Representative, and the Initial Indebtedness has been designated by the Original Investor as Subordinated Shareholder Funding Additional Collateral Agent. to each Authorized Representative in accordance with each Secured Credit Document. Initial Additional Authorized Representative Investor Joinder Agreement the introductory paragraph of this Agreement. Investor, substantially in the form of Annex III hereto or such other form as shall be approved by the Applicable Authorized Representative. Initial Additional Collateral Agent introductory paragraph of this Agreement. Investor Obligations and duties of, Parent Guarantor owing to the Investors arising under the Investor Documents Initial Additional Obligations the Additional Obligations pursuant to the Initial whether direct or indirect (including those acquired by assumption), absolute or contingent, due or Additional Agreement. to become due, now existing or hereafter arising and including interest, fees and other amounts, if any, that accrue after the commencement by or against any Borrower or any other Grantor of any Initial Additional Secured Parties proceeding under any Bankruptcy Laws naming such Person as the debtor in such proceeding, any Initial Additional Obligations and the Initial Additional Authorized Representative. regardless of whether such interest, fees and other amounts, if any, are allowed claims in such proceeding. Initial Additional Security Agreement dated as of October 2, 2019 among the Grantors party thereto and the Initial Additional Collateral Investor Obligations Acquisition means, in respect of a person and to any Investor Agent, as amended, restated, supplemented or otherwise modified from time to time. Obligations, a transaction where that person (a) purchases by way of assignment or transfer, (b) enters into any sub-participation in respect of, or (c) enters into any other agreement or Initial Additional Security Documents arrangement having an economic effect substantially similar to a sub-participation in respect of, the other Security Documents (as defined in the Initial Additional Agreement) and each other the rights and benefits in respect of those Investor Obligations. agreement entered into in favor of the Initial Additional Collateral Agent for the purpose of securing any Initial Agreement Obligations. Joinder Agreement in the form of Annex II hereto (with such changes as may be reasonably approved by such Authorized Representatives, Insolvency or Liquidation Proceeding Collateral Agents, Additional Senior Class Debt Representative and Additional Senior Class Debt (a) any case commenced by or against any Grantor under any Bankruptcy Law, any Collateral Agent) required to be delivered by an Authorized Representative and the related other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets Additional Senior Class Debt Collateral Agent to each Collateral Agent and each Authorized or liabilities of any Grantor, any receivership or assignment for the benefit of creditors relating to Representative pursuant to Section 6.13 hereof in order to establish an additional Series of any Grantor or any similar case or proceeding relative to any Grantor or its creditors, as such, in Additional Obligations and add Additional Secured Parties hereunder. each case whether or not voluntary; 6 7 77660844_6 77660844_6
ANNEX I IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date first written above. FORM OF CONSENT OF GRANTOR BIDFAIR MERGERIGHT INC. Dated: [ ], [ ] Reference is made to the Equal Priority Intercreditor Agreement dated as of October 2, By: ______________________________ 2019 between DEUTSCHE BANK TRUST COMPANY AMERICAS, as Credit Agreement Name: Collateral Agent, BNP PARIBAS, as Credit Agreement Administrative Agent, DEUTSCHE Title: BANK TRUST COMPANY AMERICAS, as the Initial Additional Authorized Representative and DEUTSCHE BANK TRUST COMPANY AMERICAS, as the Initial Additional Collateral Agent, BIDFAIR HOLDINGS INC. as the same may be amended, restated, supplemented or otherwise modified from time to time (the Equal Priority Intercreditor Agreement By: ______________________________ have the meanings assigned to such terms in the Equal Priority Intercreditor Agreement. Name: The undersigned Grantors have read the foregoing Equal Priority Intercreditor Agreement Title: and consent and agree to the provisions thereof. Each of the undersigned Grantors agrees not to take any action that would be contrary to the express provisions of the foregoing Equal Priority Intercreditor Agreement, agrees to abide by the requirements expressly applicable to it under the [EACH OTHER GRANTOR] foregoing Equal Priority Intercreditor Agreement and agrees that, except as otherwise provided therein, no Secured Party shall have any liability to any Grantor for acting in accordance with the provisions of the foregoing Equal Priority Intercreditor Agreement. Each Grantor understands that By: ______________________________ the foregoing Equal Priority Intercreditor Agreement is for the sole benefit of the Secured Parties Name: and their respective successors and assigns, and that such Grantor is not an intended beneficiary Title: or third party beneficiary thereof except to the extent otherwise expressly provided therein. Without limitation to the foregoing, each Grantor agrees to take such further action and to execute and deliver such additional documents and instruments (in recordable form, if requested) as the Collateral Agent may reasonably request to effectuate the terms of and the Lien priorities contemplated by the Equal Priority Intercreditor Agreement. This Consent shall be governed and construed in accordance with the laws of the State of New York. Notices delivered to any Grantor pursuant to this Consent shall be delivered in accordance with the notice provisions set forth in the Equal Priority Intercreditor Agreement. Annex I - 1 Signature Page to Annex I of Equal Priority Intercreditor Agreement 77660844_6 77660844_6
ANNEX II and bound by, the Equal Priority Intercreditor Agreement with the same force and effect as if the New Representative had originally been named therein as an Authorized Representative and the FORM OF JOINDER New Collateral Agent had originally been named therein as a Collateral Agent, and each of the New Representative and the New Collateral Agent, on its behalf and on behalf of such Additional [FORM OF] JOINDER NO. [ ] dated as of [ ], 20[ Joinder Agreement Senior Class Debt Parties, hereby agrees to all the terms and provisions of the Equal Priority to the EQUAL PRIORITY INTERCREDITOR AGREEMENT dated as of October 2, 2019 (as Intercreditor Agreement applicable to it as Authorized Representative or Collateral Agent, as amended, amended and restated, supplemented or otherwise modified form time to time and in applicable, and to the Additional Senior Class Debt Parties that it represents as Additional Secured Equal Priority Intercreditor Agreement DEUTSCHE Authorized Representative ercreditor BANK TRUST COMPANY AMERICAS, as Credit Agreement Collateral Agent, BNP Collateral PARIBAS, as Credit Agreement Administrative Agent, DEUTSCHE BANK TRUST COMPANY Agent AMERICAS, as the Initial Additional Authorized Representative and DEUTSCHE BANK Collateral Agent. The Equal Priority Intercreditor Agreement is hereby incorporated herein by TRUST COMPANY AMERICAS, as the Initial Additional Collateral Agent, and each additional reference. Authorized Representative and each additional Collateral Agent from time to time a party thereto.1 SECTION 2. Each of the New Representative and the New Collateral Agent represents A. Capitalized terms used herein but not otherwise defined herein shall have the and warrants to each Collateral Agent, each Authorized Representative and the other Secured meanings assigned to such terms in the Equal Priority Intercreditor Agreement. Parties, individually, that (i) it has full power and authority to enter into this Joinder Agreement, in its capacity as [trustee/administrative agent/collateral agent] under [describe new facility], B. As a condition to the ability of the Borrower to incur Additional Obligations and to (ii) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes secure such Additional Senior Class Debt with the liens and security interests created by the its legal, valid and binding obligation, enforceable against it in accordance with its terms and Additional Security Documents, the Additional Senior Class Debt Representative in respect of (iii) the Additional Agreements relating to such Additional Senior Class Debt provide that, upon such Additional Senior Class Debt is required to become an Authorized Representative, the ional Senior Class Debt Additional Senior Class Debt Collateral Agent in respect of such Additional Senior Class Debt is Parties in respect of such Additional Senior Class Debt will be subject to and bound by the required to become a Collateral Agent, and such Additional Senior Class Debt and the Additional provisions of the Equal Priority Intercreditor Agreement as Additional Secured Parties. Senior Class Debt Parties in respect thereof are required to become subject to and bound by, the Equal Priority Intercreditor Agreement. Section 6.13 of the Equal Priority Intercreditor Agreement SECTION 3. This Joinder Agreement may be executed in counterparts, each of which provides that such Additional Senior Class Debt Representative may become an Authorized shall constitute an original, but all of which when taken together shall constitute a single contract. Representative, such Additional Senior Class Debt Collateral Agent may become a Collateral This Joinder Agreement shall become effective when each Collateral Agent shall have received a Agent, and such Additional Senior Class Debt and such Additional Senior Class Debt Parties may counterpart of this Joinder Agreement that bears the signatures of the New Representative and the become subject to and bound by the Equal Priority Intercreditor Agreement upon the execution New Collateral Agent. Delivery of an executed signature page to this Joinder Agreement by and delivery by the Senior Debt Class Representative and the Additional Senior Debt Class facsimile transmission or other electronic transmission shall be effective as delivery of a manually Collateral Agent of an instrument in the form of this Joinder Agreement and the satisfaction of the signed counterpart of this Joinder Agreement. other conditions set forth in Section 6.13 of the Equal Priority Intercreditor Agreement. The New Representative SECTION 4. Except as expressly supplemented hereby, the Equal Priority Intercreditor New Collateral Agent Agreement shall remain in full force and effect. Joinder Agreement in accordance with the requirements of the Equal Priority Intercreditor Agreement and the Security Documents. SECTION 5. THIS JOINDER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND Accordingly, each Collateral Agent, each Authorized Representative and the New CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE Representative agree as follows: OF NEW YORK. SECTION 1. In accordance with Section 6.13 of the Equal Priority Intercreditor SECTION 6. In case any one or more of the provisions contained in this Joinder Agreement, the New Representative by its signature below becomes an Authorized Representative Agreement should be held invalid, illegal or unenforceable in any respect, no party hereto shall be under, the New Collateral Agent by its signature below becomes a Collateral Agent under, and the required to comply with such provision for so long as such provision is held to be invalid, illegal related Additional Senior Class Debt and Additional Senior Class Debt Parties become subject to or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Equal Priority Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal 1 In the event of the Refinancing of any of the Credit Agreement Obligations, revise to reflect joinder by a new Credit Agreement Collateral Agent. Annex II - 1 Annex II - 2 77660844_6 77660844_6
Acknowledged by: ANNEX III [ ], as Collateral Agent for the Credit FORM OF SUPPLEMENT Agreement Secured Parties [FORM OF] SUPPLEMENT NO. [ Supplement ], 20[ ] to the Equal Priority Intercreditor Agreement, dated as of October 2, 2019, (as amended, amended By: ______________________________ and restated, supplemented or otherwise modified form time to time and in effect on the date Name: Equal Priority Intercreditor Agreement DEUTSCHE BANK TRUST Title: COMPANY AMERICAS, as Credit Agreement Collateral Agent, BNP PARIBAS, as Credit Agreement Administrative Agent, DEUTSCHE BANK TRUST COMPANY AMERICAS, as the [ ], as Authorized Representative for the Initial Additional Authorized Representative and DEUTSCHE BANK TRUST COMPANY Credit Agreement Secured Parties AMERICAS, as the Initial Additional Collateral Agent, each Grantor party thereto, each Investor party thereto and each Additional Authorized Representative that from time to time becomes a By: ______________________________ party thereto. Name: Title: A. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Equal Priority Intercreditor Agreement. [ ], as the Initial Additional Authorized Representative B. Pursuant to the Credit Agreement, the Initial Additional Agreement, certain Credit Agreement Security Documents and certain Initial Additional Security Documents, certain By: ______________________________ Investors may enter into the Equal Priority Intercreditor Agreement. The Equal Priority Name: Intercreditor Agreement provides that any such Investor may become party to the Equal Priority Title: Intercreditor Agreement by execution and delivery of an instrument in the form of this Supplement. New Investor g this Supplement in accordance with [ ], as the Initial Additional Collateral Agent the requirements of the Credit Agreement, the Initial Additional Agreement, Credit Agreement Security Documents and Initial Additional Security Documents. By: ______________________________ Accordingly, the Applicable Authorized Representative and the New Investor agree as Name: follows: Title: SECTION 1. In accordance with the Equal Priority Intercreditor Agreement, the New Investor by its signature below becomes an Investor under the Equal Priority Intercreditor Agreement with the same force and effect as if originally named therein as an Investor, and the New Investor hereby agrees to all the terms and provisions of the Equal Priority Intercreditor Priority Intercreditor Agreement shall be deemed to include the New Investor. The Equal Priority Intercreditor Agreement is hereby incorporated herein by reference. SECTION 2. The New Investor represents and warrants to the Applicable Authorized Representative and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms. SECTION 3. This Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Applicable Authorized Representative shall have received a counterpart of this Supplement that bears the signature of the New Investor. Delivery Signature Page to Annex II of Equal Priority Intercreditor Agreement Annex III - 1 77660844_6 77660844_6
of an executed signature page to this Supplement by facsimile transmission or other electronic IN WITNESS WHEREOF, the New Investor and the Applicable Authorized method shall be as effective as delivery of a manually signed counterpart of this Supplement. Representative have duly executed this Supplement to the Equal Priority Intercreditor Agreement as of the day and year first above written. SECTION 4. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. [NAME OF NEW INVESTOR], SECTION 5. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to By: ______________________________ comply with such provision for so long as such provision is held to be invalid, illegal or Name: unenforceable, but the validity, legality and enforceability of the remaining provisions contained Title: herein and in the Equal Priority Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal Address for notices: or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. ____________________________________ ____________________________________ SECTION 6. All communications and notices hereunder shall be given to it at the address set forth below its signature hereto as provided in Section 6.01 of the Equal Priority Intercreditor attention of: ________________________ Agreement. All communications and notices hereunder to the New Investor shall be given to it at Telecopy: ________________________ its address set forth below its signature hereto. SECTION 7. The Borrower agrees to reimburse the Applicable Authorized Representative for its fees and expenses incurred in accordance with the terms of the relevant [ ], as Applicable Authorized Representative Security Documents. [SIGNATURE PAGES FOLLOW] By: ______________________________ Name: Title: Annex III - 2 Signature Page to Annex III of Equal Priority Intercreditor Agreement 77660844_6 77660844_6
Exhibit E xxxxxx corporation (the to the Credit Agreement Company Borrower to time parties thereto, the Administrative Agent for FORM OF AFFILIATED LENDER/BORROWER ASSIGNMENT AND ACCEPTANCE the Lenders and Deutsche Bank Trust Company Americas, as Collateral Agent. This Affiliated Lender/Borrower Assignment and Acceptance Agreement (the Assignment 6. Assigned Interest: between [Insert name of Assignor Assignor Insert name of Assignee] (the Assignee them in the Credit Agreement identified below (as amended, supplemented or otherwise Credit Agreement Aggregate Amount Percentage acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 of Amount of Assigned of attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Tranche of Loans/Commitment Loans/Commitments Loans/Commitments Assignment as if set forth herein in full. Loan s for all Lenders Assigned 28 $___________ _____________ $_______________ For an agreed consideration, the Assignor hereby irrevocably sells and assigns to _ _ ________________% the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, the interest nt and any other documents or instruments delivered pursuant thereto that represents the amount and percentage 7. Additional Representations and Covenants of Assignee: Assigned Interest to the Assignor and, except as expressly provided in this Assignment, without representation or [If Assignee is an Affiliated Lender,] Assignee warranty by the Assignor. represents and warrants that (a) it is an Affiliated Lender; and (b) to the best of such Affiliated 1. Assignor: ______________________________ Effective Date, after giving effect to this 2. Assignee: ______________________________ is an Eligible Assignment, the aggregate principal amount of the Assignee [and a[n] [Lender/Affiliate of a Term Loans held by all Affiliated Lenders does not Lender/Related Fund]].26 exceed 30% of the total Commitments and Loans outstanding. By executing this Assignment, each 3. Borrower: 27 Affiliated Lender agrees to be bound by the terms of Section 9.04(l) of the Credit Agreement. 4. Administrative Agent: BNP Paribas, (the Administrative Agent ) under the Credit Agreement. 5. Credit Agreement: Credit Agreement dated as of October 2, 2019 (as amended, modified, supplemented or restated from Credit Agreement BidFair MergeRight Inc., a Delaware corporation (which on the Closing Date shall be merged with, [Remainder of page intentionally left blank] 26 Select as applicable. 28 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. 27 Select as applicable. 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE Name: AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF Title:] TRANSFER IN THE REGISTER THEREFOR.] By: The terms set forth in this Assignment are hereby agreed to: Name: Title:]32 ASSIGNOR: [NAME OF ASSIGNOR] By: Name: Title: ASSIGNEE: [NAME OF ASSIGNEE] By: Name: Title: Consented to and Accepted: [BNP Paribas, as Administrative Agent [and][,] [L/C Issuer] [and] [Swing Line Lender] By: Name: Title:]29 [Xxxxxxx Xxxxx Bank USA, as L/C Issuer] By: Name: Title:]30 [Consented to: 31 By: 29 If required pursuant to Section 9.04(b) of the Credit Agreement. 30 If required pursuant to Section 9.04(b) of the Credit Agreement. 31 Include if assignment is executed in connection with the Revolving Commitment and after the appointment of the Subsidiary Revolver Borrower. 32 If required pursuant to Section 9.04(b) of the Credit Agreement. 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
Execution Version Exhibit F-1 to the Credit Agreement FORM OF FACILITY GUARANTY See attached. FACILITY GUARANTY Dated as of October 2, 2019 by and among THE GUARANTORS REFERRED TO HEREIN and BNP PARIBAS, as Administrative Agent 77785246_6 EU-DOCS\26045402.3
Execution Version Exhibit F-2 to the Credit Agreement FORM OF U.S. PLEDGE AND SECURITY AGREEMENT See attached. PLEDGE AND SECURITY AGREEMENT Dated as of October 2, 2019 by and among THE GRANTORS REFERRED TO HEREIN and DEUTSCHE BANK TRUST COMPANY AMERICAS as Collateral Agent 77785246_6 EU-DOCS\25892880.7 EU-DOCS\26045402.3 76852875_12
Security Agreement Supplement from or to, such Grantor, and regardless of where located (all of which will be collectively referred to as Security Agreement in substantially the form of Annex I hereto executed by an entity that becomes a Subsidiary Grantor Collateral Grantor under this Security Agreement after the date hereof. (i) all Accounts; Software source code and object code versions, (b) all data, databases and compilations of data, whether machine readable or otherwise, and (c) (ii) all Chattel Paper; all documentation, training materials and configurations related to any of the foregoing. (iii) all Documents; Stock Rights ends, instruments or other distributions and any other right or property which the Grantors shall receive or shall become entitled to receive for any reason whatsoever (iv) all Equipment; with respect to, in substitution for or in exchange for any Capital Stock constituting Collateral, any right to receive an Capital Stock and any right to receive earnings, in which the Grantors now have or hereafter (v) all Fixtures; acquire any right, issued by an issuer of such Capital Stock. (vi) all General Intangibles; Subsidiary Grantor xxxxx, for the avoidance of doubt, the Administrative Borrower and the Subsidiary Revolver Borrower. (vii) all Goods; Supporting Obligations (viii) all Instruments; Tangible Chattel Paper f the UCC. (ix) all Inventory; Termination Date (x) all Investment Property; Trademarks (xi) all cash or cash equivalents; interest in and to the following: (a) all trademarks (including service marks), trade names and trade dress, logos, and other indicia of origin, and all registrations and applications for registration thereof and the (xii) all letters of credit, Letter-of-Credit Rights and Supporting Obligations; goodwill of the business connection with the use of or symbolized by the foregoing; and (b) all IP Ancillary Rights to the foregoing. (xiii) all Deposit Accounts with any bank or other financial institution; Trade Secrets (xiv) all Commercial Tort Claims described in any Amendment to this Security interest (and all related IP Ancillary Rights) arising under any Requirement of Law in or relating to Agreement delivered pursuant to Section 4.6; proprietary, confidential and/or non-public information, however documented, including but not limited to confidential ideas, know-how, concepts, methods, processes, formulae, reports, data, customer lists, mailing (xv) all Intellectual Property and all IP Licenses; and lists, business plans and all other trade secrets. (xvi) all accessions to, substitutions for and replacements, proceeds (including UCC mercial Code, as in effect from time to time, of the State Stock Rights), insurance proceeds and products of the foregoing, together with all books and of New York or of any other state the laws of which are required as a result thereof to be applied in records, customer lists, credit files, computer files, programs, printouts and other computer connection with the attachment, perfection or priority of, or remedies with respect to, materials and records related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing; The foregoing definitions shall be equally applicable to both the singular and plural forms to secure the prompt and complete payment and performance of the Obligations. of the defined terms. Section 2.2. Grant by Parent. Parent hereby pledges, assigns and grants to the ARTICLE II Collateral Agent, on behalf of and for the ratable benefit of the Secured Parties, a security interest in all of GRANT OF SECURITY INTEREST its right, title and interest in, to and under (a) all of the shares of Capital Stock of the Borrower, as well as any other shares, stock certificates, options or rights of any nature whatsoever in respect of the Capital Section 2.1. Grant by Subsidiary Grantors. Each Subsidiary Grantor hereby pledges, Stock of the Borrower that may be issued or granted to, or held by, Parent and (b) any loans made by Parent assigns and grants to the Collateral Agent, on behalf of and for the ratable benefit of the Secured Parties, a to the Borrower prior to, as of or following the date hereof, including any instruments or promissory notes security interest in all of its right, title and interest in, to and under all personal property and other assets, representing the same and (c) all accessions to, substitutions for and replacements, proceeds (including whether now owned by or owing to, or hereafter acquired by or arising in favor of such Subsidiary Grantor Stock Rights), insurance proceeds and products of the foregoing, together with all books and records, (including under any trade name or derivations thereof), and whether owned or consigned by or to, or leased customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing (all -7- -8- EU-DOCS\25892880.7 EU-DOCS\25892880.7 76852875_12 76852875_12
EXHIBIT C TANGIBLE CHATTEL PAPER III. LEASED COLLATERAL LOCATIONS None. N/A IV. BAILEE/WAREHOUSE COLLATERAL LOCATIONS N/A V. PRIOR NAMES N/A 77905783_4 77905783_4
EXHIBIT E EXHIBIT F PLEDGED COLLATERAL (See Section 4.2 and 4.6 of Security Agreement) Type of Percentage AMENDMENT Entity Name Jurisdiction Owner Entity Owned BidFair MergeRight Inc. Corporation Delaware BidFair Holdings Inc. 100% This Amendment, dated ________________, ___ is delivered pursuant to [Section 4.2] [Section 4.6] of the Security Agreement referred to below. All defined terms herein shall have the meanings ascribed thereto or incorporated by reference in the Security Agreement. The undersigned agrees that this Amendment may be attached to that certain Pledge and Security Agreement, dated as of October 2, 2019, between the undersigned, as the Grantors, and Deutsche Bank Trust Company Americas, as the Collateral Agent (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the Security Agreement By: Name: Title: H-1 EU-DOCS\25892880.7 77905783_4 76852875_12
DEUTSCHE BANK TRUST COMPANY AMERICAS Exhibit A as Collateral Agent [Trademarks] [Patents] [Copyrights] By: Name: Title: 77932633_1 EU-DOCS\26075250.277932633_2 Signature Page to Trademark Security Agreement 77932633_1 EU-DOCS\26075250.277932633_2
Exhibit G the ordinary course of business. The Lender may also attach schedules to this Note and endorse to the Credit Agreement thereon the date, amount and maturity of its Loans and payments with respect thereto. Notwithstanding the foregoing, the failure of the Lender to so evidence the Loan or to attach FORM OF PROMISSORY NOTE such schedules shall not in any manner affect the obligation of the Borrower to make payments of principal and interest in accordance with the terms of this Note and the Credit Agreement. THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF This Note is one of the promissory notes referred to in the Credit Agreement, which, THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND among other things, contains provisions for the acceleration of the maturity hereof upon the THE OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE happening of certain events, for optional and mandatory prepayment of the principal hereof prior REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE to the maturity hereof and for the amendment or waiver of certain provisions of the Credit TERMS OF SUCH CREDIT AGREEMENT. Agreement, all upon the terms and conditions therein specified. [ ], 20[ ] The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of Borrower this Note. [_ Lender with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of [__________] in the installments referred to below. The Borrower promises to pay interest on the unpaid principal amount of the Loan made by the Lender from the date of such Loan until such principal amount is paid in full, at such [Remainder of page intentionally left blank] interest rates and at such times as provided in the Credit Agreement, dated as of , 2019 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, Credit Agreement among BidFair MergeRight Inc., a Delaware corporation (which on the Closing Date shall be merged w Company Borrower Lenders Deutsche Bank Trust Company Americas, as collateral agent (including any successor thereto, the Collateral Agent . Borrower shall make principal payments on this Note as set forth in Section 2.11 of the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds to the payment account of the Administrative Agent. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement. Note o the benefits of the Credit Agreement and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Facility Guaranty and is secured by the Collateral. Upon the occurrence and continuation of an Event of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. The Loan made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE LOANS AND PAYMENTS WITH RESPECT THERETO WITH THE LAWS OF THE STATE OF NEW YORK. Amount of Outstanding NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN End of Principal or Principal OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT Tranche Type of Loan Amount of Interest Interest Paid Balance This Notation PURSUANT TO AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 9.04 OF Date of Loan Made Loan Made Period This Date Date Made By THE CREDIT AGREEMENT. SOTHEBY By: Name: Title: 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
Exhibit H-1 [NAME OF LENDER] to the Credit Agreement By: FORM OF NON-BANK TAX CERTIFICATE Name: U.S. TAX COMPLIANCE CERTIFICATE Title: (For Non-U S. Lenders That Are Not Partnerships or Pass-Through Entities For U.S. Federal Income Tax Purposes) Date: ________ __, 20[ ] Reference is hereby made to the Credit Agreement dated as of October 2, 2019 (as amended, modified, supplemented or restated from time to time, the Credit Agreement ), among BidFair MergeRight Inc., a Delaware corporation (which on the Closing Date shall be merged w Company Borrower ies thereto, the Administrative Agent for the Lenders and Deutsche Bank Trust Company Americas, as Collateral Agent. Pursuant to the provisions of Section 2.20(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder (as determined for U.S. federal income tax purposes) of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation (as determined for U.S. federal income tax purposes) related to the Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. NY\6783899.4 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
Exhibit X-0 Xxxxxxx X-0 to the Credit Agreement to the Credit Agreement FORM OF NON-BANK TAX CERTIFICATE FORM OF NON-BANK TAX CERTIFICATE U.S. TAX COMPLIANCE CERTIFICATE U.S. TAX COMPLIANCE CERTIFICATE (For Non-U S. Participants That Are Not Partnerships or Pass-Through Entities For U.S. Federal (For Non-U.S. Participants That Are Partnerships or Pass-Through Entities For U.S. Federal Income Tax Purposes) Income Tax Purposes) Reference is hereby made to the Credit Agreement dated as of October 2, 2019 (as amended, modified, supplemented or restated from time to time, the Credit Agreement ), Reference is hereby made to the Credit Agreement dated as of October 2, 2019 among BidFair MergeRight Inc., a Delaware corporation (which on the Closing Date shall be (as amended, modified, supplemented or restated from time to time, the Credit Agreement ), merged w Company among BidFair MergeRight Inc., a Delaware corporation (which on the Closing Date shall be surviving such merger a Borrower merged w Company ith the Company Administrative Agent for the Lenders and Deutsche Bank Trust Company Americas, as Borrower Collateral Agent. Administrative Agent for the Lenders and Deutsche Bank Trust Company Americas, as Collateral Agent. Pursuant to the provisions of Section 2.20(e) and 9.04(f) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Pursuant to the provisions of Section 2.20(e) and 9.04(f) of the Credit Agreement, participation in respect of which it is providing this certificate, (ii) it is not a bank within the the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder (as of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole determined for U.S. federal income tax purposes) of the Borrower within the meaning of Section beneficial owners of such participation, (iii) with respect such participation, neither the 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation (as determined for undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant U.S. federal income tax purposes) related to the Borrower as described in Section 881(c)(3)(C) to a loan agreement entered into in the ordinary course of its trade or business within the of the Code. meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder (as determined for U.S. federal income tax purposes) of the The undersigned has furnished its participating Lender with a certificate of its Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E. By executing this certificate, the indirect partners/members is a controlled foreign corporation (as determined for U.S. federal undersigned agrees that (1) if the information provided on this certificate changes, the income tax purposes) related to the Borrower as described in Section 881(c)(3)(C) of the Code. undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in The undersigned has furnished its participating Lender with IRS Form W-8IMY either the calendar year in which each payment is to be made to the undersigned, or in either of accompanied by one of the following forms from each of its partners/members that is claiming the two calendar years preceding such payments. the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the [NAME OF PARTICIPANT] undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to By: the undersigned, or in either of the two calendar years preceding such payments. Name: Title: Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. Date: ________ __, 20[ ] NY\6783899.4 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
[NAME OF PARTICIPANT] Exhibit H-4 to the Credit Agreement By: Name: FORM OF NON-BANK TAX CERTIFICATE Title: U.S. TAX COMPLIANCE CERTIFICATE (For Non-U S. Lenders That Are Partnerships or Pass-Through Entities For U.S. Federal Income Date: ________ __, 20[ ] Tax Purposes) Reference is hereby made to the Credit Agreement dated as of October 2, 2019 (as amended, modified, supplemented or restated from time to time, the Credit Agreement ), among BidFair MergeRight Inc., a Delaware corporation (which on the Closing Date shall be merged w Company Borrower Administrative Agent for the Lenders and Deutsche Bank Trust Company Americas, as Collateral Agent. Pursuant to the provisions of Section 2.20(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder (as determined for U.S. federal income tax purposes) of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation (as determined for U.S. federal income tax purposes) related to the Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
Exhibit I to the Credit Agreement [NAME OF LENDER] FORM OF SOLVENCY CERTIFICATE By: Name: THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS: Title: Date: ________ __, 20[ ] 1. I am the [chief financial officer] of BidFair MergeRight Inc., a Delaware corporation (the ). 2. restated, supplemented or otherwise modified, the ; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among the Company as Borrower, the Lenders party thereto from time to time, BNP Paribas, as administrative agent (together with its permitted successors in such capacity, the Administrative Agent ) and Deutsche Bank Trust Company Americas, as Collateral Agent. 3. I have reviewed Section 3.20 of the Credit Agreement and the definitions and provisions contained in the Credit Agreement relating thereto, and, in my opinion, have made, or have caused to be made under my supervision, such examination or investigation as is necessary to enable me to express an informed opinion as to the matters referred to herein. 4. Based upon my review and examination described in paragraph 3 above, I certify, on behalf of the Company, that as of the date hereof, after giving effect to the Transactions on a pro forma basis, the Borrower is Solvent. The foregoing certifications are made and delivered as of , 2019. BidFair MergeRight Inc., By:________________________ Title: [Chief Financial Officer] 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
Exhibit J Annex A to the Credit Agreement to the Compliance Certificate FORM OF COMPLIANCE CERTIFICATE33 [INSERT FINANCIAL STATEMENTS] THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS: 1. I am the [chief financial officer] of , (the ). 2. Reference is made to the Credit Agreement, dated as of October 2, 2019 (as amended, modified, supplemented or restated from time to time, the ; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among the Company as Borrower, the Lenders party thereto from time to time, BNP Paribas, as administrative agent (together with its permitted successors in such capacity, the Administrative Agent ) and Deutsche Bank Trust Company Americas, as Collateral Agent. 3. I have made, or have caused to be made under my supervision, a review in reasonable detail of the transactions and condition of the Company and its Subsidiaries during the accounting period covered by the financial statements attached hereto as Annex A. 4. The examination described in paragraph 3 above did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes an Event of Default or Default during or at the end of any of the accounting periods covered by the attached financial statements or as of the date of this Certificate, except as set forth in a separate attachment, if any, to this Certificate, describing in detail, the nature of the condition or event, the period during which it has existed and the action which the Company has taken, is taking, or proposes to take with respect to each such condition or event. The foregoing certifications, together with the computations set forth in Annex A hereto and the financial statements delivered with this Certificate in support hereof, are made to Section 4.10(e) of Annex 1 of the Credit Agreement. By:________________________ Title: Chief Financial Officer 33 NTD: Pursuant to Section 4.05(e) of the Security Agreement, with respect to Copyrights, Trademarks or Patents filed, obtained or acquired after the Closing Date, on the date on which quarterly or annual financial statements are required to be delivered pursuant to Section 4.10 in Annex I of the Credit Agreement, the applicable Grantors (as defined in the Security Agreement) are required to deliver to the Collateral Agent in form and substance reasonably acceptable to the Collateral Agent and suitable for filing in the Applicable IP Office the respective Confirmatory Grant for all material Copyrights, Trademarks, and Patents owned by such Grantor. 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
Annex B an Officer of the Company) or returned surplus assets of any to the Compliance Certificate Pension Plan; (c) any extraordinary, exceptional, unusual or nonrecurring gain, $ FOR THE FISCAL QUARTER ENDING loss, charge or expense or any charges, expenses or reserves in respect of any restructuring, redundancy or severance or any Consolidated Net Senior Secured Leverage Ratio means, as of any date of determination, the expenses, charges, reserves, gains or other costs related to the ratio of (A) Consolidated Net Senior Secured Leverage to (B) Pro Forma EBITDA34. Transactions; and, to the extent not otherwise included in this clause (c): recruiting, retention and relocation costs; signing bonuses and A. Consolidated Net Senior Secured Leverage related expenses and one-time compensation charges; curtailments 1. The aggregate outstanding Senior Secured Indebtedness of the $ or modifications to pension and post-retirement employee benefit Company and the Restricted Subsidiaries plans transaction and refinancing bonuses and special bonuses paid excluding in connection with dividends and distributions to equity holders; 2. Hedging Obligations $ start-up, transition, strategic initiative (including any multi-year strategic initiative) and integration costs, charges or expenses; costs, 3. any revolving Indebtedness Incurred pursuant to Section 4.04 of charges and expenses related to the start-up, pre-opening, opening, Annex I to the Credit Agreement in an amount not to exceed the closure, and/or consolidation of operations, offices and facilities; greater of (x) $75 million and (y) 33.3% Pro Forma EBITDA business optimization costs, charges or expenses; costs, charges and less expenses incurred in connection with new product design, 4. The aggregate amount of cash and Cash Equivalents of the $ development and introductions; costs and expenses incurred in Company and the Restricted Subsidiaries on a consolidated basis connection with intellectual property development and new systems Total (A.1 A.2 A.3 A.4) $ design; costs and expenses incurred in connection with implementation, replacement, development or upgrade of B. Pro Forma EBITDA35 operational, reporting and information technology systems and 1. The net income (loss) of the Company and the Restricted $ technology initiatives; any costs, expenses or charges relating to any Subsidiaries determined on a consolidated basis on the basis of governmental investigation or any litigation or other dispute GAAP; provided, however, that there will not be included: (including with any customer); costs and expenses in respect of warranty payments; or any fees, charges, losses, costs and expenses (a) subject to the limitations contained in clause (c) below, any $ incurred during such period, or any amortization thereof for such net income (loss) of any Person if such Person is not a Restricted period, in connection with or related to any acquisition, Restricted Payment, Investment, recapitalization, asset sale, issuance, any such Person for such period will be included in such incurrence, registration or repayment or modification of Consolidated Net Income up to the aggregate amount of cash or Indebtedness, issuance or offering of Capital Stock, refinancing Cash Equivalents actually distributed by such Person during such transaction or amendment, modification or waiver in respect of the period to the Company or a Restricted Subsidiary as a dividend or documentation relating to any such transaction and any charges or other distribution or return on investment non-recurring merger costs incurred during such period as a result (b) any net gain (or loss) realized upon the sale, abandonment or $ of any such transaction other disposition of any asset or disposed operations of the (d) the cumulative effect of a change in accounting principles; $ Company or any Restricted Subsidiary (including pursuant to any (e) any non-cash compensation charge or expense arising from $ sale/ leaseback transaction) which is not sold or otherwise disposed any grant of stock, stock options or other equity based awards and of in the ordinary course of business (as determined in good faith by any non-cash deemed finance charges in respect of any pension liabilities or other provisions; (f) all deferred financing costs written off and premiums paid or $ 34 For the most recently ended four full fiscal quarters for which internal financial statements of the Borrower are other expenses incurred directly in connection with any early available. extinguishment of Indebtedness and any net gain (loss) from any 35 NTD: For purposes of calculating the Financial Covenant and the definition of Applicable Revolving ro Forma write-off or forgiveness of Indebtedness; 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
(g) any unrealized gains or losses in respect of Hedging $ Offering (including of a Parent), Investment, acquisition (including Obligations or other derivative instruments or any ineffectiveness amounts paid in connection with the acquisition or retention of one recognized in earnings related to qualifying hedge transactions or or more individuals comprising part of a management team retained the fair value or changes therein recognized in earnings for to manage the acquired business; provided that such payments are derivatives that do not qualify as hedge transactions, in each case, in made in connection with such acquisition and are consistent with respect of Hedging Obligations or other derivative instruments; the customary practice in the industry at the time of such (h) any unrealized foreign currency translation gains or losses in $ acquisition), disposition, recapitalization or the Incurrence of any respect of Indebtedness of any Person denominated in a currency Indebtedness permitted by the Credit Agreement (whether or not other than the functional currency of such Person and any successful) (including any such fees, expenses or charges related to unrealized foreign exchange gains or losses relating to translation of the Transactions), in each case, as determined in good faith by the assets and liabilities denominated in foreign currencies; Company; (i) any unrealized foreign currency translation or transaction $ (g) any minority interest expense (whether paid or not) $ gains or losses in respect of Indebtedness or other obligations of the consisting of income attributable to minority equity interests of third Company or any Restricted Subsidiary owing to the Company or parties in such period or any prior period or any net earnings, any Restricted Subsidiary; income or share of profit of any Associates, associated company or (j) any one-time non-cash charges or any increases in $ undertaking amortization or depreciation resulting from purchase accounting, in (h) the amount of management, monitoring, consultancy and $ each case, in relation to any acquisition of another Person or advisory fees and related expenses paid in such period (or accruals business or resulting from any reorganization or restructuring relating to such fees and related expenses) to any Permitted Holder involving the Company or its Subsidiaries; (whether directly or indirectly, through any Parent) to the extent (k) any goodwill or other intangible asset impairment charge or $ permitted by Section 4.09 of Annex I; provided that any payments write-off; and for such fees and related expense shall not be included in (l) the impact of capitalized, accrued or accreting or pay-in-kind $ Consolidated EBITDA for any period to the extent they were interest or principal on Subordinated Shareholder Funding. accrued for in such period or any prior period and added back to 2. Consolidated Net Income (B.1 +/- B.1(a) +/-B.1(b) +/- B.1(c) $ Consolidated EBITDA in such period or any such prior period; +/- B.1(d)+/- B.1(e)+/- B.1(f) +/- B.1(g)+/- B.1(h)+/- B.1(i)+/- (i) other non-cash charges, write-downs or items reducing $ B.1(j)+/- B.1(k)+/- B.1(l)), less the aggregate amount of lease Consolidated Net Income (excluding any such non-cash charge, payments during such period under the lease-back arrangements write-down or item to the extent it represents an accrual of or entered into in connection with the Permitted Sale and Leaseback reserve for cash charges in any future period) or other non-cash Transactions (for the avoidance of doubt, for the purposes of this items classified by the Company as special items less other non- definition of Consolidated EBITDA, the treatment of such payments cash items of income increasing Consolidated Net Income (other under GAAP shall be disregarded) than any non-cash items increasing such Consolidated Net Income pursuant to items B.1(a) through (l) above and excluding any such plus:36 non-cash item of income to the extent it represents a receipt of cash in any future period); (j) (x) any loss from discontinued operations (but if such operations (a) Consolidated Interest Expense and Receivables Fees $ are classified as discontinued due to the fact that they are subject to (b) Consolidated Income Taxes $ an agreement to dispose of such operations, only when and to the (c) consolidated depreciation expense $ extent such operations are actually disposed of), reduced by (y) any income from discontinued operations (but if such operations are (d) consolidated amortization and impairment expense $ classified as discontinued due to the fact that they are subject to an (e) Parent Expenses of a Parent $ agreement to dispose of such operations, only when and to the (f) any expenses, charges or other costs related to any Equity $ extent such operations are actually disposed of); and (k) to the extent not already otherwise included herein, adjustments and add-backs of the nature used in connection with the calculation 36 Only to the extent deducted in calculating such Consolidated Net Income. 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3
be calculated after giving pro forma effect thereto as if such Sale or Memorandum Purchase occurred on the first day of such period. Consolidated EBITDA (B.2 +B.2(a) + B.2(b) + B.2(c) + $ Pro forma EBITDA37 (B.3 +/-B.3(a) + B.3(b) +/-B.3(c)): $ B.2(d) + B.2(e) + B.2(f) + B.2(g) + B.2(h)) + B.2(i) + B.2(j) + B.2(k) Consolidated Net Senior Secured Leverage Ratio = (A) / (B) __:1.00 adjusted as follows: (a) if since the beginning of such period the Company or any $ Restricted Subsidiary has disposed of any company, any business, or any group of assets constituting an operating unit of a business or otherwise ceases to be a Restricted Subsidiary (and is not a Restricted Subsidiary at the end of such period) (any such Sale calculate Pro Forma EBITDA is such a Sale, Pro forma EBITDA for such period will be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets which are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period; provided that if any such sale constitutes ith GAAP, Consolidated Net Income shall be reduced by an amount equal to the Consolidated Net Income (if positive) attributable to such operations for such period or increased by an amount equal to the Consolidated Net Income (if negative) attributable thereto for such period; (b) since the beginning of such period, a Parent, the Company or $ any Restricted Subsidiary (by merger or otherwise) has made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise has acquired any company, any business, or any group of assets constituting an operating unit of a business or a Person otherwise becomes a Restricted Subsidiary (and remains a Restricted Subsidiary at the end of such period) (any such Investment, acquisition or designati such Purchase occurring in connection with a transaction causing a calculation to be made hereunder, Pro forma EBITDA for such 37 For the purposes of this definition and the definitions of Consolidated EBITDA, Consolidated Income Taxes, Consolidated period will be calculated after giving pro forma effect thereto as if Interest Expense, Consolidated Net Income, Consolidated Net Leverage Ratio and Consolidated Net Senior Secured Leverage such Purchase occurred on the first day of such period; and Ratio (a) whenever pro forma effect is to be given to any transaction (including, without limitation, transactions listed in clauses (a)-(c) hereof) or calculation hereunder or such other definitions, the pro forma calculations will be as determined in good faith (c) since the beginning of such period, any Person (that became a $ by a responsible financial or accounting officer of the Borrower or an Officer of the Issuer (including in respect of anticipated Restricted Subsidiary or was merged or otherwise combined with or expense and cost reductions and synergies (other than revenue synergies)) (calculated on a pro forma basis as though such into the Company or any Restricted Subsidiary since the beginning expense and cost reductions and synergies had been realized on the first day of the period for which Pro forma EBITDA is being determined and as though such cost savings, operating expense reductions and synergies were realized during the entirety of such of such period) will have made any Sale or any Purchase that would period), (b) in determining the amount of Indebtedness outstanding on any date of determination, pro forma effect shall be given have required an adjustment pursuant to clause (a) or (b) above if to any Incurrence, repayment, repurchase, defeasance or other acquisition, retirement or discharge of Indebtedness as if such made by the Company or a Restricted Subsidiary since the transaction had occurred on the first day of the relevant period and (c) if any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of beginning of such period, Pro forma EBITDA for such period will determination had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term in excess of 12 months). 77785246_6 77785246_6 EU-DOCS\26045402.3 EU-DOCS\26045402.3