EXECUTION VERSION AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT This AMENDMENT NO. 2, dated as of October 14, 2014 (this “Amendment”), is entered into by and among Neff LLC, a Delaware limited liability company (“Parent Borrower”), Neff...
Exhibit 10.9
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EXECUTION VERSION AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT This AMENDMENT NO. 2, dated as of October 14, 2014 (this “Amendment”), is entered into by and among Xxxx LLC, a Delaware limited liability company (“Parent Borrower”), Xxxx Holdings LLC, a Delaware limited liability company (“Holdings”), Xxxx Rental LLC, a Delaware limited liability company, Bank of America, N.A., as administrative agent (in such capacity, “Agent”), and each of the financial institutions on the signature pages hereto in its capacity as a Lender under the Credit Agreement (as defined below), and amends that certain Amended and Restated Senior Secured Credit Agreement, dated as of October 1, 2010 and as amended and restated as of November 20, 2013 (as amended by that Amendment No. 1 to Amended and Restated Credit Agreement, dated as of June 9, 2014, and as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”), by and among Parent Borrower, Holdings, the other Credit Parties party thereto, the Agent, the Lenders from time to time party thereto and the other parties thereto. Capitalized terms used and not otherwise defined herein shall have the respective meanings set forth in the Credit Agreement. PRELIMINARY STATEMENTS (1) WHEREAS, Parent Borrower, the other Credit Parties, the Agent and the Lenders have entered into the Credit Agreement; (2) WHEREAS, Parent Borrower, the other Credit Parties, the Agent and certain Lenders wish to amend the Credit Agreement as set forth in Section 2 below and provide the confirmations set forth in Section 5 below; (3) WHEREAS, pursuant to Section 9.2 of the Credit Agreement Parent Borrower may, with the consent of the Agent and the Requisite Lenders, amend the Credit Agreement as set forth in Section 2 below; and (4) WHEREAS, the Requisite Lenders are willing to consent to the amendments set forth in Section 2 below and provide the confirmations set forth in Section 5(b) below. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows: Section 1. Defined Terms; References. Unless otherwise specifically defined herein, each capitalized term used herein that is not otherwise defined shall have the respective meaning assigned to such term in the Credit Agreement. Each reference contained in any Loan Document to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference contained in any Loan Document to “this Agreement” and each other similar reference, and each reference contained in any Loan Document to any other Loan Document or “thereunder”, “thereof” or other similar reference to such other Loan Document, shall, in each case after the Amendment No. 2 Operative Date (as defined in Section 4 of this Amendment), refer to such Loan Document or such other Loan Document as amended by this Amendment. Section 2. Amendments. With effect from the Amendment No. 2 Operative Date: |
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2 (a) Section 1.5(c)(iii) of the Credit Agreement shall be and hereby is amended by deleting the text of such Section in its entirety and inserting in lieu thereof “[Reserved]”. (b) Section 2.9(c)(ii) of the Credit Agreement shall be and hereby is amended by deleting the proviso at the end thereof and inserting in lieu thereof: “provided, however, that after delivery by Agent of a control notice or similar notice as set forth in this clause (ii), (A) if the applicable Event of Default causing such delivery has been cured or (B) if such control notice or similar notice was delivered as a result of the Excess Availability thresholds set forth in this clause (ii), if Excess Availability is greater than or equal to the greater of (I) 12.5% of the aggregate Revolving Loan Commitments then in effect and (II) $35.0 million for a period of thirty (30) consecutive days (a “Cash Dominion Reversal Event”), then in the case of clause (A) or (B) Agent shall within one (1) Business Day thereof rescind such control notice or similar notice and instruct the applicable depositary institution, securities intermediary or commodities intermediary that all amounts on deposit in or credited to the applicable accounts shall cease to be transferred to the Concentration Account and shall be immediately available to the applicable Credit Party.” (c) Section 3.1(j) of the Credit Agreement shall be and hereby is amended by deleting the text of such Section in its entirety and inserting in lieu thereof text as follows: “unsecured Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any one time outstanding so long as no cash interest or amortization payments are made on, or required with respect to, such Indebtedness and such Indebtedness has a final maturity date at least six months after the Commitment Termination Date;”. (d) Section 3.5 of the Credit Agreement shall be and hereby is amended as follows: (i) By inserting immediately before the semicolon at the end of clause (a) thereof the text “and Permitted Tax Receivable Payments”. (ii) By deleting the text appearing in clause (e) thereof in its entirety and inserting in lieu thereof the following: “Parent Borrower may make Restricted Payments to Holdings, and Holdings may make Restricted Payments to any Qualifying IPO Issuer, in the minimum amount necessary to enable Holdings or such Qualifying IPO Issuer to make repurchases of Stock deemed to occur upon the exercise of stock options if such Stock represents a portion of the exercise price thereof or the minimum amount of taxes due upon such exercises;”. |
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3 (iii) (A) By deleting “and” at the end of clause (i) thereof, (B) replacing the period at the end of clause (j) thereof with “; and”, and (C) adding a new clause (k) at the end of such Section as follows: “(k) to the extent the Holdings LLC Agreement requires, (i) to reimburse Xxxx Corporation for expenses incurred on behalf or directly for the benefit of Holdings and its Subsidiaries, including without limitation expenses incurred in connection with the Xxxx Corporation Qualifying IPO, (ii) if any member of Holdings exercises its right to have its units in Holdings redeemed in accordance with the Holdings LLC Agreement, Holdings may make Restricted Payments in connection with such redemption in the form of any cash or Stock contributed to Holdings by Xxxx Corporation for such purpose, and (iii) in accordance with the Holdings LLC Agreement, Holdings shall be permitted to (A) undertake all actions, including, without limitation, a reclassification, distribution, division or recapitalization, with respect to its common units, to maintain at all times a one-to-one ratio between the number of common units owned by Xxxx Corporation and the number of outstanding shares of Class A common stock of Xxxx Corporation (disregarding, for purposes of maintaining the one-to-one ratio, such Stock of Xxxx Corporation as provided in the Holdings LLC Agreement); provided that, in the case of any action pursuant to this clause (k)(iii)(A) involving a distribution or other transfer by Holdings of cash or assets (other than Stock of Holdings), such distribution or other transfer is then permitted pursuant one or more other clauses of this Section 3.5, and (B) issue, transfer or deliver from treasury stock any units of Holdings to Xxxx Corporation.”. (e) Section 3.6(a) of the Credit Agreement shall be and hereby is amended by adding a proviso at the end thereof as follows: “provided that Holdings shall be permitted to amend and restate its limited liability company operating agreement on or before the closing date of the Xxxx Corporation Qualifying IPO substantially in the form attached as Exhibit B to Amendment No. 2;”. (f) Section 3.8(b) of the Credit Agreement shall be and hereby is amended by deleting the text appearing in clause (i) thereof in its entirety and inserting in lieu thereof the following: “(i) (x) reasonable fees and compensation paid to, and indemnity provided on behalf of, officers, directors, managers, members, employees or consultants of Holdings, Parent Borrower or any of its Subsidiaries as determined in good faith by Parent Borrower’s Board of Directors or senior management, (y) incentive bonuses and other compensation, if any, paid to employees and/or members of the Board of Directors of any of the Credit Parties in connection with the 2014 Loan Transactions and (z) incentive bonuses and other compensation, if any, paid to employees and/or members of the Board of Directors of any of the Credit Parties |
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4 in connection with the Xxxx Corporation Qualifying IPO or under any Xxxx Holdings LLC 2014 Bonus Plan;”. (g) Section 3.8(b) of the Credit Agreement shall be and hereby is amended by (i) deleting “and” at the end of clause (v) thereof, (ii) deleting the period at the end of clause (vi) thereof and inserting in lieu thereof “; and”, and (iii) adding a new clause (vii) to the end thereof as follows: “(vii) (A) in connection with a Xxxx Corporation Qualifying IPO, the entry into the Holdings LLC Agreement, the Tax Receivable Agreement, the IPO Common Unit Purchase Agreement and the Amended Xxxx Holdings LLC Management Equity Plan, and (B) Affiliate Transactions arising from the performance of such agreements (including pursuant to any amendment to such Contractual Obligations or documentation replacing such Contractual Obligations to the extent that such amendment or agreement is permitted hereunder and is not more disadvantageous to the applicable Credit Party or the Lenders in any material respect than the original Contractual Obligation).”. (h) Section 3.9(a) of the Credit Agreement shall be and hereby is amended by deleting such clause in its entirety and inserting in lieu thereof the following: “(a) Holdings shall not engage in any business or activity other than (i) being a guarantor with respect to the Obligations under the Loan Documents and performing its Obligations thereunder and a guarantor with respect to the obligations under the Second Lien Loans and any Parity Lien Debt and performing its obligations thereunder and the security and other documents executed in connection therewith, (ii) holding shares of the Stock of Parent Borrower, (iii) paying taxes, (iv) preparing reports to Governmental Authorities and to the holders of its Stock, (v) holding meetings of its Board of Directors and/or the holders of its Stock, preparing company records and other company activities required to maintain its separate company structure, (vi) entry into and performance of its obligations under the Xxxx Holdings LLC 2014 Bonus Plans and Amended Xxxx Holdings Management Equity Plan, (vii) entry into and performance of its obligations under the Holdings LLC Agreement, the Tax Receivable Agreement and the IPO Common Unit Purchase Agreement and (viii) any activities reasonably related thereto.”. (i) Section 3.18 of the Credit Agreement shall be and hereby is amended by (i) deleting “or” at the end of clause (a) in the first sentence thereof and replacing it with “,”, (ii) adding “or” at the end of clause (b)(y)(2) in the first sentence thereof and (iii) adding a new clause (c) to the end of the first sentence thereof as follows: “(c) such Indebtedness is prepaid (including any consent fees and/or prepayment premiums payable in connection therewith) with the proceeds from a Xxxx Corporation Qualifying IPO or, thereafter, with the net proceeds from any other public offering of common equity securities by Xxxx Corporation (including in each case any “green shoe” or over-allotment option in connection therewith) that are applied by Xxxx Corporation to purchase common units of Holdings |
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5 (provided that payment of interest, customary breakage fees, and reimbursement of expenses of the Second Lien Agent in connection with such prepayment may be paid out of other funds of the Credit Parties)”. (j) Section 4.1 of the Credit Agreement shall be and hereby is amended by deleting the first full paragraph following clause (n) of such Section in its entirety and inserting in lieu thereof the following: “Notwithstanding anything to the contrary set forth in this Section 4.1 or in any other provision of this Agreement that refers to this Section 4.1 or any clause hereof, the obligations of the Parent Borrower set forth in clauses (a), (b) and (c) of this Section 4.1 may be satisfied by furnishing the applicable financial information required by such clause with respect to Xxxx Corporation and its Subsidiaries on a consolidated basis in lieu of furnishing the applicable financial information required by such clause with respect to Parent Borrower and its Subsidiaries on a consolidated basis; provided, that to the extent such financial information relates to Xxxx Corporation and its Subsidiaries, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Xxxx Corporation and its Subsidiaries (other than Holdings and its Subsidiaries), on the one hand, and the information relating to Holdings and its Subsidiaries on a consolidated basis, on the other hand. Documents required to be delivered pursuant to Section 4.1(a), (b), (c) or (h) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Parent Borrower posts such documents, or provides a link thereto on Parent Borrower’s website on the Internet at the website address listed in Section 9.3; (ii) on which Xxxx Corporation electronically files such documents with the U.S. Securities and Exchange Commission and they become publicly available on xxx.xxx.xxx/xxxxx/xxxxxxxxxxx/xxxxxxxxxxxxx.xxxx (or any successor website maintained by such agency); or (iii) on which such documents are posted on Parent Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether a commercial, third-party website or whether sponsored by the Agent); provided that (i) Parent Borrower shall deliver paper copies of such documents to the Agent or any Lender that requests Parent Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Agent or such Lender and (ii) any such posting shall only be deemed delivered when Parent Borrower shall notify the Agent (by facsimile or electronic mail) of the posting of any such documents and provide to the Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance Parent Borrower shall be required to provide paper copies of the Compliance and Pricing Certificates required by Section 4.1(m) to the Agent. Except for such Compliance and Pricing Certificates, the Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Parent Borrower with any such |
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6 request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.” (k) Section 5.4(b)(iv) of the Credit Agreement shall be and hereby is amended by deleting such Section in its entirety and inserting in lieu thereof the following: “(iv) each Credit Party is, and at the time of delivery of the Pledged Stock (as defined in the Security Agreement) to Agent will be, the sole holder of record and, other than Wayzata (or, after the Xxxx Corporation Qualifying IPO, Xxxx Corporation), the sole beneficial owner of such pledged Collateral pledged by each Credit Party free and clear of any Lien thereon or affecting the title thereto, except for any Lien created by this Agreement or any of the Collateral Documents in favor of the Agent for the benefit of the Agent and Lenders and the Permitted Encumbrances;”. (l) Annex A to the Credit Agreement shall be and hereby is amended by: (i) Deleting the definition of “Change of Control” appearing therein in its entirety and inserting in lieu thereof the following: ““Change of Control” means any event, transaction or occurrence as a result of which: (a) at any time prior to the consummation of a Qualifying IPO, the Permitted Holders cease to “beneficially own” (within the meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934) and control all of the voting rights associated with ownership of more than fifty percent (50%) of the outstanding Stock of Holdings having ordinary voting power on a fully diluted basis; or (b) at any time as of or after the consummation of a Qualifying IPO, (A) any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person and its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and excluding the Permitted Holders) shall become the “beneficial owner” (within the meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934), directly or indirectly, of outstanding Voting Stock of the Qualifying IPO Issuer entitling such “person” or “group” to cast more than thirty-five percent (35%) of the votes eligible to be cast in an election of directors, managing members or general partners, as applicable, of the Qualifying IPO Issuer and (B) the Permitted Holders shall own outstanding Voting Stock of the Qualifying IPO Issuer having a lesser percentage of the votes eligible to be cast in such an |
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7 election of the Qualifying IPO Issuer at such time than the “person” or “group” in the foregoing clause (A); or (c) Holdings ceases to own and control all of the voting rights associated with all of the outstanding Stock of Parent Borrower.”. (ii) Deleting the definition of “Continuing Director” appearing therein in its entirety. (iii) Deleting the definition of “Qualifying IPO Issuer” appearing therein in its entirety and inserting in lieu thereof the following: ““Qualifying IPO Issuer” means Holdings or a corporation or other legal entity which either (a) owns, directly or indirectly, 100% of the outstanding Stock of Holdings or (b) is the sole managing member of Holdings. For the avoidance of doubt, upon consummation of the Xxxx Corporation Qualifying IPO, Xxxx Corporation shall be a Qualifying IPO Issuer.”. (iv) Deleting clause (a)(xvi) of the definition of “Consolidated EBITDA” appearing therein in its entirety and inserting in lieu thereof the following: “(xvi) fees, expenses and other amounts payable by any Credit Party in connection with its performance, or payable or reimbursable to Xxxx Corporation in connection with its performance, of its obligations under the Tax Receivable Agreement and the IPO Common Unit Purchase Agreement,”. (v) Further amending the definition of “Consolidated EBITDA” by (i) deleting “and” at the end of clause (a)(xvii) thereof and replacing it with “,”, (ii) adding “and” at the end of clause (a)(xviii) thereof and (iii) adding a new clause (a)(xix) as follows: “(xix) any fees, costs, expenses or charges related to, or arising in connection with, the Xxxx Corporation Qualifying IPO, Amendment No. 2 or Second Lien Amendment No. 1 (including, without limitation, (A) payment of consent fees to lenders, (B) payment of prepayment premium and breakage costs to lenders, (C) any incentive bonuses and other compensation, if any, paid or payable to employees and/or members of the Board of Directors of any of the Credit Parties in connection with the Xxxx Corporation Qualifying IPO or under any Xxxx Holdings LLC 2014 Bonus Plan, (D) filing fees and exchange listing fees, (E) “roadshow” expenses, printer costs and other offering expenses and (F) underwriter discounts and commissions)”. |
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8 (vi) Deleting clause (b)(iv) of the definition of “Fixed Charge Coverage Ratio” appearing therein in its entirety and inserting in lieu thereof the following: “(iv) Restricted Payments paid by Holdings and its Subsidiaries after the Restatement Effective Date pursuant to Sections 3.5(a), (e), (f), (i) and (k)(i) (with respect to (k)(i), solely to the extent that such Restricted Payment is related to an expense of Xxxx Corporation that is an expense item that, if such payment were made by the Parent Borrower or its Subsidiaries and deducted in the calculation of Consolidated Net Income, such payment would be added back in the calculation of Consolidated EBITDA.”. (vii) Deleting the definition of “Stock” appearing therein in its entirety and inserting in lieu thereof the following: ““Stock” means all shares, options, warrants, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock, common units, preferred units, units or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934).”. (viii) Deleting the definition of “Tax Distributions” appearing therein in its entirety and inserting in lieu thereof the following: ““Tax Distributions” means: (1) for so long as for U.S. federal income tax purposes, Parent Borrower is taxed as a partnership or disregarded entity and is not wholly owned (directly or indirectly) by a corporate parent, (A) with respect to any taxable year ending after the Closing Date, cash distributions to fund the assumed income tax liabilities of the direct or indirect equity owners of Parent Borrower (including estimated tax liabilities) in respect of the income of Parent Borrower for such taxable year, in an aggregate amount equal to the excess of (a) the product of (x) the net taxable income of Parent Borrower (treating Parent Borrower as a taxable entity, and calculated (i) by including in such net taxable income Parent Borrower’s distributive share of all tax items attributable to Parent Borrower and any Subsidiary of Parent Borrower taxed as a partnership or disregarded entity for U.S. federal income tax purposes, and (ii) without regard to any adjustments pursuant to Section 734 of the Code that arises on or after the Qualifying IPO or any adjustments pursuant to Section 743 of the Code) for the taxable year in question, reduced by any cumulative net taxable loss with respect to any prior taxable year ending after the Closing Date to the extent such prior net taxable loss (I) is of a character (ordinary or |
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9 capital) that would permit such loss to be deducted against the income of the taxable year in question and (II) was not previously taken into account in determining the assumed income tax liabilities for any prior taxable year, and (y) the highest combined marginal federal and applicable state and/or local income tax rate (taking into account the deductibility of state and local income taxes for U.S. federal income tax purposes and the character of the taxable income in question (i.e., long term capital gain, qualified dividend income, etc.)) applicable to an individual United States citizen or corporation (whichever is higher) residing in New York, New York for the taxable year in question (or portion thereof), over (b) in the case of any taxable year beginning prior to the Closing Date, the aggregate amount of assumed estimated tax payments that should have been made under Section 6654 of the Code prior to the Closing Date (based on the assumption that all of the owners are individual or corporate residents of New York, New York (which results in a higher applicable combined marginal federal and applicable state and/or local income tax rate), calculated in a manner consistent with the calculation in clause (y) above); provided that, for the avoidance of doubt, in the event of any tax audit adjustment or other tax assessment or the filing of an amended tax return that results in additional taxable income of Parent Borrower (treating Parent Borrower as a taxable entity), the Tax Distributions with respect to such taxable year ending on or after the Closing Date shall be recalculated by giving effect to such adjustment, assessment or amended tax return (for the avoidance of doubt, taking into account interest and penalties), in a manner consistent with the calculation in clause (B) below) and (B) with respect to any taxable year ending prior to the Closing Date, cash distributions to pay the assumed income tax liabilities of the direct or indirect equity owners of Parent Borrower in respect of the income of Parent Borrower for such taxable year, in an aggregate amount equal to the sum of (i) the product of (I) any additional taxable income of Parent Borrower (calculated in a manner consistent with the calculation in clause (A) above) for such taxable year resulting from a tax audit adjustment or other tax assessment or the filing of an amended tax return made after the Closing Date and (II) the highest combined marginal federal and applicable state and/or local income tax rate (taking into account the deductibility of state and local income taxes for U.S. federal income tax purposes and the character of the taxable income in question (i.e., long term capital gain, qualified dividend income, etc.)) applicable to an individual United States citizen or corporation (whichever is higher) residing in New York, New York for the taxable year in question plus (ii) interest and penalties relating to such tax audit adjustment, assessment or amended tax return, (2) with respect to any taxable period for which Parent Borrower or any of its Subsidiaries is a member of a consolidated, combined or similar income, franchise or other state and/or local tax group of which Holdings or its direct or indirect parent is the common parent (a “Tax Group”), or for which Parent Borrower is a partnership or |
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10 disregarded entity that is wholly owned (directly or indirectly) by a corporate parent (a “Corporate Parent”), cash distributions to pay the portion of the Tax Group’s or Corporate Parent’s actual cash income, franchise or other state and/or local tax liability attributable to Parent Borrower and/or its Subsidiaries, in an amount not to exceed the income, franchise or other state and/or local tax liability that would have been payable by Parent Borrower and/or such Subsidiaries if such entities had always been taxable on a stand-alone basis (reduced by any such income, franchise or other state and/or local taxes paid or to be paid directly by Parent Borrower or its Subsidiaries), and (3) cash distributions to pay any taxes of Holdings not described in clause (1) or (2) above, provided that the aggregate payments pursuant to this clause (3) shall not exceed $250,000 per calendar year.”. (m) Annex A to the Credit Agreement shall be and hereby is amended by inserting the following definitions in appropriate alphabetical order: “Amended Xxxx Holdings LLC Management Equity Plan” means the Amended Xxxx Holdings LLC Management Equity Plan as in effect on the Amendment No. 2 Operative Date substantially in the form attached to Amendment No. 2 as Exhibit E as further amended from time to time in any manner that the Borrower reasonably determines is not adverse to the interests of the Agent or the Lenders. “Amendment No. 2” means that certain Amendment No. 2 to Amended and Restated Credit Agreement, dated as of the Amendment No. 2 Effective Date, among the Agent, the Lenders party thereto, Holdings and Borrowers. “Amendment No. 2 Effective Date” means October 14, 2014. “Amendment No. 2 Operative Date” has the meaning set forth in Amendment No. 2. “Holdings LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement as in effect on the Amendment No. 2 Operative Date substantially in the form attached to Amendment No. 2 as Exhibit B as further amended from time to time in any manner that the Borrower reasonably determines is not adverse to the interests of the Agent or the Lenders. “IPO Common Unit Purchase Agreement” means the IPO Common Unit Purchase Agreement as in effect on the Amendment No. 2 Operative Date substantially in the form attached to Amendment No. 2 as Exhibit C as amended from time to time in any manner that the Borrower reasonably determines is not adverse to the interests of the Agent or the Lenders. “Xxxx Corporation” means Xxxx Corporation, a Delaware corporation formed at the direction of Wayzata for the purposes of effecting a Qualifying IPO, together with its successors and assigns. |
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11 “Xxxx Corporation Qualifying IPO” means a Qualifying IPO of Xxxx Corporation in connection with which (a) Holdings amends and restates its limited liability operating agreement substantially in the form of Exhibit B to Amendment No. 2, (b) Xxxx Corporation applies all or a portion of the net proceeds from such Qualifying IPO to purchase common units of Holdings, and (c) Xxxx Corporation becomes the sole managing member of Holdings. “Xxxx Holdings LLC 2014 Bonus Plans” means each of (a) the Xxxx Holdings LLC 2014 Management Special Bonus Plan, effective June 1, 2014, (b) the Xxxx Holdings LLC Amended and Restated Sale Transaction Bonus Plan, effective as of June 1, 2014 and as the same was further amended on or prior to the Amendment No. 2 Operative Date in connection with the Xxxx Corporation Qualifying IPO, and (c) the Xxxx Holdings LLC Incentive Bonus Plan, as in effect on or prior to the Amendment No. 2 Operative Date. “Permitted Tax Receivable Payment” means the aggregate amount of any accelerated lump sum amounts payable pursuant to the Tax Receivable Agreement by reason of any early termination of the Tax Receivable Agreement as a result of or in connection with the occurrence of a Change of Control that has been waived by the Requisite Lenders. “Second Lien Agent” means Credit Suisse AG, in its capacity as administrative and collateral agent under the Second Lien Credit Agreement, together with its successors and assigns. “Second Lien Amendment No. 1” means that certain Amendment No. 1 to Second Lien Credit Agreement, to be dated and effective prior to or simultaneous with the Xxxx Corporation Qualifying IPO, by and among Parent Borrower, Holdings, the other Credit Parties that are party thereto, the Second Lien Agent and the Second Lien Lenders that are party thereto, which amends the Second Lien Credit Agreement. “Second Lien Lenders” means each of the “Lenders” as defined in the Second Lien Credit Agreement. “Second Lien Loan Repayment Amount” means the sum of (a) the aggregate principal amount of the Second Lien Loans prepaid with a portion of the net proceeds of from a Qualifying IPO received by the Credit Parties, plus (b) a 2.00% prepayment premium on the principal amount of Second Lien Loans repaid pursuant to the foregoing clause (a), plus (c) accrued and unpaid interest in respect of the principal amount of Second Lien Loans repaid pursuant to the foregoing clause (a), plus (d) solely to the extent ascertainable as of the date of pricing of the Xxxx Corporation Qualifying IPO, customary LIBOR breakage fees payable to the Second Lien Lenders in respect of the principal amount of Second Lien Loans repaid pursuant to the foregoing clause (a), plus (e) consent fees payable to the Second Lien Lenders, plus (f) solely to the extent ascertainable as of the date of pricing the Xxxx Corporation Qualifying IPO, expenses payable to |
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15 (iv) the payment by the Credit Parties of customary LIBOR breakage fees payable to the Second Lien Lenders in respect of the principal amount of Second Lien Loans repaid pursuant to the foregoing clause (a), whether out of the proceeds from Xxxx Corporation Qualifying IPO received by the Credit Parties or otherwise; (v) the payment by the Credit Parties of consent fees payable to the Second Lien Lenders not to exceed $287,500 in the aggregate out of the proceeds from Xxxx Corporation Qualifying IPO received by the Credit Parties; (vi) the payment by the Credit Parties of expenses payable to counsel to the Second Lien Agent in connection with the amendment to the Second Lien Credit Agreement whether out of the proceeds from Xxxx Corporation Qualifying IPO received by the Credit Parties or otherwise; (vii) the entry by the Credit Parties into the Second Lien Amendment No. 1 substantially in the form attached hereto as Exhibit A; (viii) the amendment and restatement of the Holdings limited liability company operating agreement substantially in the form attached hereto as Exhibit B; (ix) the entry by Holdings into the IPO Common Unit Purchase Agreement substantially in the form attached hereto as Exhibit C; (x) the entry by Holdings into the Tax Receivable Agreement substantially in the form attached hereto as Exhibit D; (xi) the entry by Holdings into the Amended Xxxx Holdings LLC Management Equity Plan substantially in the form attached hereto as Exhibit E; and (xii) all transactions directly related to the foregoing clauses (i) through (xi). (c) Upon the Amendment No. 2 Effective Date this Amendment shall constitute a Loan Document. The execution, delivery, and performance of this Amendment shall not operate, except as expressly set forth herein, as a waiver of, consent to, or a modification or amendment of, any right, power, or remedy of Agent or any Lender under the Credit Agreement or any other Loan Document. Except for the amendments to the Credit Agreement and the consents expressly set forth herein, the Credit Agreement and the other Loan Documents shall remain unchanged and in full force and effect. The amendments and consents set forth herein shall, except to the extent they become operative on the Amendment No. 2 Operative Date, (i) neither excuse future non-compliance with the Loan Documents nor operate as a waiver of any Default or Event of Default, (ii) not operate as a consent to any matter under the Loan Documents except as expressly set forth herein and (iii) not be construed as an indication that the Lenders will agree to any other amendments or give any other consents or waivers with respect to the Credit Agreement or the other Loan Documents |
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BANK OF AMERICA, N.A., as Agent and as a Lender: By: Name: Xxxxxx X. Xxxxx Title: Senior Vice President [Signature Page to Amendment No. 2 to Amended and Restated Credit Agreement] |
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RBS CITIZENS BUSINESS CAPITAL, a division of RBS Asset Finance, Inc., as a Lender: By: Name: Xxxxx X. Xxxxxx Xx Tile: Senior Vice President [Signature Page to Amendment No. 2 to Amended and Restated Credit Agreement] |
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SUNTRUST BANK, as a Lender: By Name: Xxxx Xxxxx Title: Vice President [Signature Page to Amendment No. 2 to Amended and Restated Credit Agreement] |
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CIT FINANCE LLC, as a Lender: By: Name: Rence X. Xxxxxx Title: Managing Director [Signature Page to Amendment No. 2 to Amended and Restated Credit Agreement] |
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PNC BANK, NATIONAL ASSOCIATION, as a Lender: By: Name: Xxxxxx X. Xxxxxxxx Title: Vice President [Signature Page to Amendment No. 2 to Amended and Restated Credit Agreement] |
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[LENDER], as a Lender: By: Name: Title: Regions Bank Brucc Xxxxxx Attorney in Fact |
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JFIN BUSINESS CREDIT FUND I LLC, as a Lender: By: Name: J. Xxxx XxXxxxxxx Title: Managing Director [Signature Page to Amendment No. 2 to Amended and Restated Credit Agreement] |
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender: By: Name: Xxxxxxx Xxxxxxxxxxx Title: Authorized Signatory By: Name: Xxxxxx Xxxxxx Title: Authorized Signatory [Signature Page to Amendment No. 2 to Amended and Restated Credit Agreement] |
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XXXXX FARGO CAPITAL FINANCE, LLC, as a Lender: By: Name: Xxxxx X. Xxxx Title: Authorized Signatory [Signature Page to Amendment No. 2 to Amended and Restated Credit Agreement] |
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EXHIBIT A FORM OF SECOND LIEN AMENDMENT NO. 1 [see attached] |
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EXECUTION VERSION #86420060v14 AMENDMENT NO. 1 TO SECOND LIEN CREDIT AGREEMENT This AMENDMENT NO. 1, dated as of October 14, 2014 (this “Amendment”), is entered into by and among Xxxx LLC, a Delaware limited liability company (“Parent”), Xxxx Holdings LLC, a Delaware limited liability company (“Holdings”), Xxxx Rental LLC, a Delaware limited liability company (the “Borrower”), Credit Suisse, AG, as administrative agent (in such capacity, “Administrative Agent”), and each of the financial institutions on the signature pages hereto in its capacity as a Lender under the Credit Agreement (as defined below), and amends that certain Second Lien Credit Agreement, dated as of June 9, 2014 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”), by and among Parent, Borrower, Holdings, the Administrative Agent, the Lenders from time to time party thereto and the other parties thereto. PRELIMINARY STATEMENTS (1) WHEREAS, Parent, Borrower, Holdings, the Administrative Agent and the Lenders have entered into the Credit Agreement; (2) WHEREAS, Parent, Borrower, Holdings, the Administrative Agent and certain Lenders wish to amend the Credit Agreement as set forth in Section 2 below and provide the confirmations set forth in Section 5 below; (3) WHEREAS, pursuant to Section 9.08 of the Credit Agreement Borrower may, with the consent of the Administrative Agent and the Required Lenders, amend the Credit Agreement as set forth in Section 2 below; and (4) WHEREAS, the Required Lenders are willing to consent to the amendments set forth in Section 2 below and provide the confirmations set forth in Section 5(b) below. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows: Section 1. Defined Terms; References. Unless otherwise specifically defined herein, each capitalized term used herein that is not otherwise defined shall have the respective meaning assigned to such term in the Credit Agreement. Each reference contained in any Loan Document to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference contained in any Loan Document to “this Agreement” and each other similar reference, and each reference contained in any Loan Document to any other Loan Document or “thereunder”, “thereof” or other similar reference to such other Loan Document, shall, in each case after the Amendment No. 1 Operative Date (as defined in Section 4 of this Amendment), refer to such Loan Document or such other Loan Document as amended by this Amendment. Section 2. Amendments. With effect from the Amendment No. 1 Operative Date: (a) Section 6.01(j) of the Credit Agreement shall be and hereby is amended by deleting the text of such Section in its entirety and inserting in lieu thereof text as follows: |
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2 #86420060v14 “unsecured Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any one time outstanding so long as no cash interest or amortization payments are made on, or required with respect to, such Indebtedness and such Indebtedness has a final maturity date at least six months after the Latest Maturity Date;”. (b) Section 6.04(a) of the Credit Agreement shall be and hereby is amended as follows: (i) By deleting the text appearing in clause (iii) thereof in its entirety and inserting in lieu thereof the following: “so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (A) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may (and Holdings may make Restricted Payments to any Qualifying IPO Issuer to allow such Qualifying IPO Issuer to), purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower (or such Qualifying IPO Issuer) deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (B) Parent may make a Restricted Payment to Holdings to allow Holdings to, and Holdings may (and Holdings may make Restricted Payments to any Qualifying IPO Issuer to allow such Qualifying IPO Issuer to), purchase, redeem or otherwise acquire or retire for value Equity Interests of Holdings, Parent or the Borrower (or such Qualifying IPO Issuer) made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights;”. (ii) (A) By deleting “and” at the end of clause (vi) thereof, (B) by deleting the period at the end of clause (vii) thereof and inserting in lieu thereof the text “and Permitted Tax Receivable Payments; and” and (C) adding a new clause (viii) at the end of such Section as follows: “(viii) to the extent the Holdings LLC Agreement requires, (I) to reimburse Xxxx Corporation for expenses incurred on behalf or directly for the benefit of Holdings and its Subsidiaries, including without limitation expenses incurred in connection with the Xxxx Corporation Qualifying IPO, (II) if any member of Holdings exercises its right to have its units in Holdings redeemed in accordance with the Holdings LLC Agreement, Holdings may make Restricted Payments in connection with such redemption in the form of any cash or Stock contributed to Holdings by Xxxx Corporation for such purpose, and (III) in accordance with the Holdings LLC Agreement, Holdings shall be permitted to (A) undertake all actions, including, without limitation, a reclassification, distribution, division or recapitalization, with respect to its common units, to maintain |
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3 #86420060v14 at all times a one-to-one ratio between the number of common units owned by Xxxx Corporation and the number of outstanding shares of Class A common stock of Xxxx Corporation (disregarding, for purposes of maintaining the one-to-one ratio, such Stock of Xxxx Corporation as provided in the Holdings LLC Agreement); provided that, in the case of any action pursuant to this clause (viii)(III)(A) involving a distribution or other transfer by Holdings of cash or assets (other than Equity Interests of Holdings), such distribution or other transfer is then permitted pursuant one or more other clauses of this proviso to Section 6.04(a), and (B) issue, transfer or deliver from treasury stock any units of Holdings to Xxxx Corporation.”. (c) Section 6.11(b) of the Credit Agreement shall be and hereby is amended by adding a proviso at the end thereof as follows: “provided that Holdings shall be permitted to amend and restate its limited liability company operating agreement on or before the closing date of the Xxxx Corporation Qualifying IPO substantially in the form attached as Exhibit B to Amendment No. 1;”. (d) Section 6.11(c) of the Credit Agreement shall be and hereby is amended by adding a new proviso at the end thereof as follows: “provided that the Loan Parties shall be permitted to enter into that certain Revolving Credit Facility Amendment No. 2 on or before the closing date of the Xxxx Corporation Qualifying IPO substantially in the form attached as Exhibit A to Amendment No. 1;”. (e) Section 6.16 of the Credit Agreement shall be and hereby is amended by (i) deleting “and” at the end of clause (i) thereof, (ii) deleting the period at the end of clause (j) thereof and inserting in lieu thereof “; and”, and (iii) adding a new clause (k) to the end thereof as follows: “(k) (A) in connection with a Xxxx Corporation Qualifying IPO, the entry into the Holdings LLC Agreement, the Tax Receivable Agreement, the IPO Common Unit Purchase Agreement and the Amended Xxxx Holdings LLC Management Equity Plan, and (B) transactions arising from the performance of such agreements (including pursuant to any amendment to such agreements or documentation replacing such agreements to the extent that such amendment or agreement is permitted hereunder and is not more disadvantageous to the applicable Loan Party or the Lenders in any material respect than the original agreement).”. (f) Section 6.19 of the Credit Agreement shall be and hereby is amended by deleting clause (i) thereof in its entirety and inserting in lieu thereof the following: “(i) With respect to Holdings, engage in any business activities or have any assets or liabilities other than its ownership of the Equity Interests of Parent and |
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4 #86420060v14 activities and liabilities incidental thereto, including its liabilities pursuant to the Guarantee and Collateral Agreement and the Pledge Agreement; provided Holdings may (1) incur Indebtedness and Liens and make Restricted Payments to the extent permitted by the other Sections of this Article 6, (2) enter into and perform its obligations under the Xxxx Holdings LLC 2014 Bonus Plans and the Amended Xxxx Holdings LLC Management Equity Plan, (3) enter into and perform of its obligations under the Holdings LLC Agreement, the Tax Receivable Agreement and the IPO Common Unit Purchase Agreement and (4) any activities reasonably related thereto; provided, further that Holdings will not create, incur, assume or permit to exist any Lien (other than (1) Liens created under the Loan Documents and (2) Liens of a type described in clause (c), (d), (g), (j)(i), (j)(ii), (j)(vi), (j)(vii), (j)(viii), (k) (it being understood that such Lien will be terminated substantially concurrently with the consummation of the Transactions) and (u) of Section 6.02) on any Equity Interests issued by Parent, and”. (g) Section 5.04 of the Credit Agreement shall be and hereby is amended by inserting two new paragraphs immediately following clause (n) of such Section as follows: “Notwithstanding anything to the contrary set forth in this Section 5.04 or in any other provision of this Agreement that refers to this Section 5.04 or any clause hereof, the obligations of Holdings, Parent and Borrower set forth in clauses (a) and (b) of this Section 5.04 may be satisfied by furnishing the applicable financial information required by such clause with respect to Xxxx Corporation and its Subsidiaries on a consolidated basis in lieu of furnishing the applicable financial information required by such clause with respect to Holdings and its Subsidiaries on a consolidated basis; provided, that to the extent such financial information relates to Xxxx Corporation and its Subsidiaries, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Xxxx Corporation and its Subsidiaries (other than Holdings and its Subsidiaries), on the one hand, and the information relating to Holdings and its Subsidiaries on a consolidated basis, on the other hand. Documents required to be delivered pursuant to Section 5.04(a), (b) or (g) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings, Parent or Borrower posts such documents, or provides a link thereto on Holdings’, Parent’s or Borrower’s website on the Internet at xxx.xxxxxxxx.xxx; (ii) on which Xxxx Corporation electronically files such documents with the U.S. Securities and Exchange Commission and they become publicly available on xxx.xxx.xxx/xxxxx/xxxxxxxxxxx/xxxxxxxxxxxxx.xxxx (or any successor website maintained by such agency); or (iii) on which such documents are posted on Holding’s, Parent’s or Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a |
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5 #86420060v14 commercial, third-party website or whether sponsored by the Administrative Agent); provided that (i) Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) any such posting shall only be deemed delivered when Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and provide to the Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 5.04(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.” (h) Section 1.01 of the Credit Agreement shall be and hereby is amended by: (i) Deleting the definition of “Change of Control” appearing therein in its entirety and inserting in lieu thereof the following: ““Change of Control” shall mean the occurrence of any of the following events: (a) at any time prior to the consummation of a Qualifying IPO, the Permitted Investors cease to “beneficially own” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), or to have the power to vote or direct the voting of, Voting Stock of Holdings representing more than fifty percent (50%) of the voting power of the total outstanding Voting Stock of Holdings; (b) at any time as of or after the consummation of a Qualifying IPO, (i) any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person and its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and excluding the Permitted Investors) shall become the “beneficial owner” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Voting Stock of the Qualifying IPO Issuer entitling such “person” or “group” to cast more than thirty-five percent (35%) of the votes eligible to be cast in an election of directors, managing members or general partners, as applicable, of the Qualifying IPO Issuer and (ii) the Permitted Investors shall own outstanding Voting Stock of the Qualifying IPO Issuer having a lesser percentage of the votes eligible to be cast in such an election of the Qualifying IPO Issuer at such time than the “person” or “group” in the foregoing clause (i); |
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6 #86420060v14 (c) Holdings ceases to own and control, directly or indirectly, all of the voting rights associated with all of the outstanding Equity Interests of Parent and Borrower; or (d) a “Change of Control” shall occur under and as defined in the Revolving Credit Facility Documentation.”. (ii) Deleting the definition of “Continuing Director” appearing therein in its entirety. (iii) Deleting the definition of “Qualifying IPO Issuer” appearing therein in its entirety and inserting in lieu thereof the following: ““Qualifying IPO Issuer” means Holdings or a corporation or other legal entity which either (a) owns, directly or indirectly, 100% of the outstanding Stock of Holdings or (b) is the sole managing member of Holdings. For the avoidance of doubt, upon consummation of the Xxxx Corporation Qualifying IPO, Xxxx Corporation shall be a Qualifying IPO Issuer.”. (iv) Amending the definition of “Consolidated EBITDA” appearing therein by (A) deleting “and” appearing at the end of clause (a)(xiii) thereof and inserting in lieu thereof “,” and (B) inserting two new clauses immediately after the end of clause (a)(xiv) thereof and immediately before the words “and minus” following the end of clause (a)(xiv), as follows: “, (xv) fees, expenses and other amounts payable by any Loan Party in connection with its performance, or payable or reimbursable to Xxxx Corporation in connection with its performance, of its obligations under the Tax Receivable Agreement and the IPO Common Unit Purchase Agreement and (xvi) any fees, costs, expenses or charges related to, or arising in connection with, the Xxxx Corporation Qualifying IPO, Amendment No. 1 or Revolving Credit Facility Amendment No. 2 (including, without limitation, (A) payment of consent fees to lenders, (B) payment of prepayment premium and breakage costs to lenders, (C) any incentive bonuses and other compensation, if any, paid or payable to employees and/or members of the board of directors of any of the Loan Parties in connection with the Xxxx Corporation Qualifying IPO or under any Xxxx Holdings LLC 2014 Bonus Plans, (D) filing fees and exchange listing fees, (E) “roadshow” expenses, printer costs and other offering expenses and (F) underwriter discounts and commissions),”. (v) By deleting the definition of “Permitted Tax Distributions” appearing therein in its entirety and inserting in lieu thereof the following: ““Permitted Tax Distributions” shall mean: |
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7 #86420060v14 (1) for so long as for U.S. federal income tax purposes Parent is taxed as a partnership or disregarded entity and is not wholly owned (directly or indirectly) by a corporate parent, (A) with respect to any taxable year ending after the Closing Date, cash distributions to fund the assumed income tax liabilities of the direct or indirect equity owners of Parent (including estimated tax liabilities) in respect of the income of Parent for such taxable year, in an aggregate amount equal to the excess of (a) the product of (x) the net taxable income of Parent (treating Parent as a taxable entity, and calculated (i) by including in such net taxable income Parent’s distributive share of all tax items attributable to Parent and any Subsidiary of Parent taxed as a partnership or disregarded entity for U.S. federal income tax purposes, and (ii) without regard to any adjustments pursuant to Section 734 of the Code that arises on or after the Qualifying IPO or any adjustments pursuant to Section 743 of the Code) for the taxable year in question, reduced by any cumulative net taxable loss with respect to any prior taxable year ending after the Closing Date to the extent such prior net taxable loss (I) is of a character (ordinary or capital) that would permit such loss to be deducted against the income of the taxable year in question and (II) was not previously taken into account in determining the assumed income tax liabilities for any prior taxable year and (y) the highest combined marginal federal and applicable state and/or local income tax rate (taking into account the deductibility of state and local income taxes for U.S. federal income tax purposes and the character of the taxable income in question (i.e., long term capital gain, qualified dividend income, etc.)) applicable to an individual United States citizen or corporation (whichever is higher) residing in New York, New York for the taxable year in question (or portion thereof), over (b) in the case of any taxable year beginning prior to the Closing Date, the aggregate amount of assumed estimated tax payments that should have been made under Section 6654 of the Code prior to the Closing Date (based on the assumption that all of the owners are individual or corporate residents of New York, New York (which results in a higher applicable combined marginal federal and applicable state and/or local income tax rate), calculated in a manner consistent with the calculation in clause (y) above); provided that, for the avoidance of doubt, in the event of any tax audit adjustment or other tax assessment or the filing of an amended tax return that results in additional taxable income of Parent (treating Parent as a taxable entity), the Permitted Tax Distributions with respect to such taxable year ending on or after the Closing Date shall be recalculated by giving effect to such adjustment, assessment or amended tax return (for the avoidance of doubt, taking into account interest and penalties), in a manner consistent with the calculation in clause (B) below) and (B) with respect to any taxable year ending prior to the Closing Date, cash distributions to pay the assumed income tax liabilities of the direct or indirect equity owners of Parent in respect of the income of Parent for such taxable year, in an aggregate amount equal to the sum of (i) the product of (I) any additional taxable income of Parent (calculated in a |
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8 #86420060v14 manner consistent with the calculation in clause (A) above) for such taxable year resulting from a tax audit adjustment or other tax assessment or the filing of an amended tax return made after the Closing Date and (II) the highest combined marginal federal and applicable state and/or local income tax rate (taking into account the deductibility of state and local income taxes for U.S. federal income tax purposes and the character of the taxable income in question (i.e., long term capital gain, qualified dividend income, etc.)) applicable to an individual United States citizen or corporation (whichever is higher) residing in New York, New York for the taxable year in question plus (ii) interest and penalties relating to such tax audit adjustment, assessment or amended tax return, (2) with respect to any taxable period for which Parent or any of its Subsidiaries is a member of a consolidated, combined or similar income, franchise or other state and/or local tax group of which Holdings or its direct or indirect parent is the common parent (a “Tax Group”), or for which Parent is a partnership or disregarded entity that is wholly owned (directly or indirectly) by a corporate parent (a “Corporate Parent”), cash distributions to pay the portion of the Tax Group’s or Corporate Parent’s actual cash income, franchise or other state and/or local tax liability attributable to Parent and/or its Subsidiaries, in an amount not to exceed the income, franchise or other state and/or local tax liability that would have been payable by Parent and/or such Subsidiaries if such entities had always been taxable on a stand-alone basis (reduced by any such income, franchise or other state and/or local taxes paid or to be paid directly by Parent or its Subsidiaries), and (3) cash distributions to pay any taxes of Holdings not described in clause (1) or (2) above, provided that the aggregate payments pursuant to this clause (3) shall not exceed $250,000 per calendar year.”. (vi) By deleting the definition of “Voting Stock” appearing therein in its entirety and inserting in lieu thereof the following: ““Voting Stock” shall mean, with respect to any Person, any class or classes of Stock of such Person that entitles the holders thereof to vote in the election of directors, managing members or general partners, as the case may be, of such Person.” (i) Section 1.01 of the Credit Agreement shall be and hereby is amended by inserting the following definitions in appropriate alphabetical order: “Amended Xxxx Holdings LLC Management Equity Plan” means the Amended Xxxx Holdings LLC Management Equity Plan as in effect on the Amendment No. 1 Operative Date substantially in the form attached to Amendment No. 1 as Exhibit E as further amended from time to time in any manner that the Borrower reasonably determines is not adverse to the interests of the Administrative Agent or the Lenders. |
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9 #86420060v14 “Amendment No. 1” means that certain Amendment No. 1 to Second Lien Credit Agreement, dated as of the Amendment No. 1 Effective Date, among the Administrative Agent, the Lenders party thereto, Holdings, Parent and the Borrower. “Amendment No. 1 Effective Date” means October 14, 2014. “Amendment No. 1 Operative Date” has the meaning set forth in Amendment No. 1. “Holdings LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement as in effect on the Amendment No. 1 Operative Date substantially in the form attached to Amendment No. 1 as Exhibit B as further amended from time to time in any manner that the Borrower reasonably determines is not adverse to the interests of the Administrative Agent or the Lenders. “IPO Common Unit Purchase Agreement” means the IPO Common Unit Purchase Agreement as in effect on the Amendment No. 1 Operative Date substantially in the form attached to Amendment No. 1 as Exhibit C as amended from time to time in any manner that the Borrower reasonably determines is not adverse to the interests of the Administrative Agent or the Lenders. “Xxxx Corporation” means Xxxx Corporation, a Delaware corporation formed at the direction of Wayzata for the purposes of effecting a Qualifying IPO, together with its successors and assigns. “Xxxx Corporation Qualifying IPO” means a Qualifying IPO of Xxxx Corporation in connection with which (a) Holdings amends and restates its limited liability operating agreement substantially in the form of Exhibit B to Amendment No. 1, (b) Xxxx Corporation applies all or a portion of the net proceeds from such Qualifying IPO to purchase common units of Holdings, and (c) Xxxx Corporation becomes the sole managing member of Holdings. “Xxxx Holdings LLC 2014 Bonus Plans” means each of (a) the Xxxx Holdings LLC 2014 Management Special Bonus Plan, effective June 1, 2014, (b) the Xxxx Holdings LLC Amended and Restated Sale Transaction Bonus Plan, effective as of June 1, 2014 and as the same was further amended on or prior to the Amendment No. 1 Operative Date in connection with the Xxxx Corporation Qualifying IPO, and (c) the Xxxx Holdings LLC Incentive Bonus Plan, as in effect on or prior to the Amendment No. 1 Operative Date. “Permitted Tax Receivable Payment” means the aggregate amount of any accelerated lump sum amounts payable pursuant to the Tax Receivable Agreement by reason of any early termination of the Tax Receivable Agreement as a result of or in connection with the occurrence of a Change of Control that has been waived by the Required Lenders. |
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13 #86420060v14 all of the Liens and security interests heretofore granted, pursuant to and in connection with the Collateral Documents, to the Administrative Agent, as collateral security for the Obligations under the Loan Documents in accordance with their respective terms, and acknowledges that all of such Liens and security interests, and all Collateral heretofore pledged as security for such Obligations, continue to be and remain collateral for such obligations from and after the date hereof. (b) Notwithstanding anything set forth in the Credit Agreement, subject to the conditions set forth in Section 4 of this Amendment, each of the Lenders hereby consents to: (i) the entry by the Loan Parties into the Revolving Credit Facility Amendment No. 2 substantially in the form attached hereto as Exhibit A; (ii) the amendment and restatement of the Holdings limited liability company operating agreement substantially in the form attached hereto as Exhibit B; (iii) the entry by Holdings into the IPO Common Unit Purchase Agreement substantially in the form attached hereto as Exhibit C; (iv) the entry by Holdings into the Tax Receivable Agreement substantially in the form attached hereto as Exhibit D; (v) the entry by Holdings into the Amended Xxxx Holdings LLC Management Equity Plan substantially in the form attached hereto as Exhibit E; and (vi) all transactions directly related to the foregoing clauses (i) through (v). (c) Upon the Amendment No. 1 Effective Date this Amendment shall constitute a Loan Document. The execution, delivery, and performance of this Amendment shall not operate, except as expressly set forth herein, as a waiver of, consent to, or a modification or amendment of, any right, power, or remedy of Administrative Agent or any Lender under the Credit Agreement or any other Loan Document. Except for the amendments to the Credit Agreement and the consents expressly set forth herein, the Credit Agreement and the other Loan Documents shall remain unchanged and in full force and effect. The amendments and consents set forth herein shall, except to the extent they become operative on the Amendment No. 1 Operative Date, (i) neither excuse future non-compliance with the Loan Documents nor operate as a waiver of any Default or Event of Default, (ii) not operate as a consent to any matter under the Loan Documents except as expressly set forth herein and (iii) not be construed as an indication that the Lenders will agree to any other amendments or give any other consents or waivers with respect to the Credit Agreement or the other Loan Documents that may be requested by the Loan Parties; it being understood that the agreement of any other amendments or giving of any other consents or waivers |
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#86420060v14 CREDIT SUISSE, AG, as Administrative Agent: By: Name: Title: |
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#86420060v14 [LENDER], as a Lender: By: Name: Title: |
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#86420060v14 EXHIBIT A FORM OF REVOLVING CREDIT FACILITY AMENDMENT NO. 2 [see attached] |
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#86420060v14 EXHIBIT B FORM OF HOLDINGS LLC AGREEMENT [see attached] |
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#86420060v14 EXHIBIT C FORM OF IPO COMMON UNIT PURCHASE AGREEMENT [see attached] |
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#86420060v14 EXHIBIT D FORM OF TAX RECEIVABLE AGREEMENT [see attached] |
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#86420060v14 EXHIBIT E FORM OF AMENDED XXXX HOLDINGS LLC MANAGEMENT EQUITY PLAN [see attached] |
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EXHIBIT B FORM OF HOLDINGS LLC AGREEMENT [see attached] |
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12 NY\6520040.7 DRAFT 10-14-2014 voting interests thereof are at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, references to a “Subsidiary” of the Company shall be given effect only at such times that the Company has one or more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the Company. “Substituted Member” means a Person that is admitted as a Member to the Company pursuant to Section 12.01. “Tax Distribution Date” has the meaning set forth in Section 4.01(b)(i). “Tax Distributions” has the meaning set forth in Section 4.01(b)(i). “Tax Matters Partner” has the meaning set forth in Section 9.03. “Tax Receivable Agreement” means that certain Tax Receivable Agreement, dated as the date hereof, by and among the Corporation, on the one hand, and the Original Members, on the other hand (together with any joinder thereto from time to time executed by any LLC Optionee and/or by any successor or assign to any party to such agreement). “Taxable Year” means the Company’s accounting period for U.S. federal income tax purposes determined pursuant to Section 9.02. “Trading Day” means a day on which the Stock Exchange or such other principal United States securities exchange on which the Class A Common Stock is listed or admitted to trading is open for the transaction of business (unless such trading shall have been suspended for the entire day). “Transfer” (and, with a correlative meaning, “Transferring”) means any sale, transfer, assignment, pledge, encumbrance or other disposition of (whether directly or indirectly, whether with or without consideration and whether voluntarily or involuntarily or by operation of Law) (a) any interest (legal or beneficial) in any Equity Securities or (b) any equity or other interest (legal or beneficial) in any Member if substantially all of the assets of such Member consist solely of Units. “Treasury Regulations” means the income tax regulations promulgated under the Code and any corresponding provisions of succeeding regulations. “Underwriting Agreement” means the Underwriting Agreement, dated as of [ ], 2014, by and among the Corporation, the Company, Xxxxxx Xxxxxxx & Co. LLC and Xxxxxxxxx LLC. “Unit” means a Company Interest of a Member or a permitted Assignee in the Company representing a fractional part of the Company Interests of all Members and Assignees as may be established by the Manager from time to time in accordance with Section 3.02; provided, however, that any class or group of Units issued shall have the relative rights, powers and duties set forth in this Agreement, and the Company Interest represented by such class or group of Units shall be determined in accordance with such relative rights, powers and duties. |
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13 NY\6520040.7 DRAFT 10-14-2014 “Unitholder” means a Common Unitholder and any Member who is the registered holder of any other class of Units, if any. “Unvested Corporate Shares” means shares of Class A Common Stock issued pursuant to the Corporate Omnibus Incentive Plan that are not Vested Corporate Shares. “Value” means (a) for any Stock Option Plan, the Market Price for the trading day immediately preceding the date of exercise of a stock option under such Stock Option Plan and (b) for any Equity Plan other than a Stock Option Plan, the Market Price for the trading day immediately preceding the Vesting Date. “Vested Corporate Shares” has the meaning set forth in Section 3.04(c)(ii). “Vesting Date” has the meaning set forth in Section 3.11(c)(ii). “Voting Units” means (a) the Common Units and (b) any other Units other than Units that by their express terms do not entitle the record holder thereof to vote on any matter presented to the Members generally under this Agreement for approval. “Wayzata” has the meaning set forth in the recitals to this Agreement. “Wayzata Offshore” has the meaning set forth in the recitals to this Agreement. ARTICLE II. ORGANIZATIONAL MATTERS Section 2.01 Formation of Company. The Company was formed on May 12, 2010 pursuant to the provisions of the Delaware Act. Section 2.02 Second Amended and Restated Limited Liability Company Agreement. The Members hereby execute this Agreement for the purpose of establishing the affairs of the Company and the conduct of its business in accordance with the provisions of the Delaware Act. The Members hereby agree that during the term of the Company set forth in Section 2.06 the rights and obligations of the Members with respect to the Company will be determined in accordance with the terms and conditions of this Agreement and the Delaware Act. On any matter upon which this Agreement is silent, the Delaware Act shall control. No provision of this Agreement shall be in violation of the Delaware Act and to the extent any provision of this Agreement is in violation of the Delaware Act, such provision shall be void and of no effect to the extent of such violation without affecting the validity of the other provisions of this Agreement; provided, however, that where the Delaware Act provides that a provision of the Delaware Act shall apply “unless otherwise provided in a limited liability company agreement” or words of similar effect, the provisions of this Agreement shall in each instance control; provided further, that notwithstanding the foregoing, Section 18-210 of the Delaware Act shall not apply or be incorporated into this Agreement. Section 2.03 Name. The name of the Company shall be “Xxxx Holdings LLC.” The Manager in its sole discretion may change the name of the Company at any time and from time to time. Notification of any such change shall be given to all of the Members and, to the extent |
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15 NY\6520040.7 DRAFT 10-14-2014 made by the Members with respect to their Units; and (iv) the Fair Market Value of any property other than cash contributed by the Members with respect to their Units (including, if applicable, a description and the amount of any liability assumed by the Company or to which contributed property is subject) (such schedule, the “Schedule of Members”). The applicable Schedule of Members in effect as of the Effective Time is set forth as Schedule 1 to this Agreement. The Schedule of Members shall be the definitive record of ownership of each Unit of the Company and all relevant information with respect to each Member. The Company shall be entitled to recognize the exclusive right of a Person registered on its records as the owner of Units for all purposes and shall not be bound to recognize any equitable or other claim to or interest in Units on the part of any other Person, whether or not it shall have express or other notice thereof, except as otherwise provided by the Delaware Act. (c) No Member shall be required or, except as approved by the Manager pursuant to Section 6.01 and in accordance with the other provisions of this Agreement, permitted to loan any money or property to the Company or borrow any money or property from the Company. Section 3.02 Units. Interests in the Company shall be represented by Units, or such other securities of the Company, in each case as the Manager may establish in its discretion in accordance with the terms and subject to the restrictions hereof. Immediately after the Effective Time, the Units will be comprised of a single class of Common Units (with an aggregate of [ ] Common Units being authorized for issuance by the Company). To the extent required pursuant to Section 3.04(a), the Manager may create one or more classes or series of Common Units or preferred Units solely to the extent they are in the aggregate substantially equivalent to a class of common stock of the Corporation or class or series of preferred stock of the Corporation; provided that as long as there are any Members of the Company (other than the Corporation) or any LLC Optionees with respect to outstanding LLC Options, then no such new class or series of Units may deprive such Members or LLC Optionees of, or dilute or reduce, the pro rata share of all Company Interests they would have received or to which they would have been entitled (including on a pro forma basis for the exercise of LLC Options) if such new class or series of Units had not been created except to the extent (and solely to the extent) the Company actually receives cash in an aggregate amount, or other property with a Fair Market Value in an aggregate amount, equal to the pro rata share allocated to such new class or series of Units and the number thereof issued by the Company. Section 3.03 Recapitalization and Split; the Corporation’s Capital Contribution; the Corporation’s Purchase of Common Units; Redemptions. (a) Recapitalization and Split. In connection with the Recapitalization, immediately upon the Effective Time, the aggregate number of 9,200,000 Original Class A Units that were issued and outstanding and held by the Original Members prior to the execution and effectiveness of this Agreement are hereby converted into an aggregate of [ ] Common Units. The number of Common Units received by each Original Member reflect a [__]:1 ([_______________] to one) split of each Unit evidencing a common Company Interest previously held by each Original Member and reflected on Schedule A to, and in other applicable provisions of, the First A&R LLC Agreement. In connection with the Recapitalization, immediately upon the Effective Time, the aggregate number of 778,374 Original Class B Units that were underlying option grants to the Original LLC Optionees prior to the execution and |
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19 NY\6520040.7 DRAFT 10-14-2014 (a) Options Granted to Persons other than LLC Employees. If at any time or from time to time, in connection with any Stock Option Plan, a stock option granted over shares of Class A Common Stock to a Person other than an LLC Employee is duly exercised: (i) The Corporation shall, as soon as practicable after such exercise, make a Capital Contribution to the Company in an amount equal to the exercise price paid to the Corporation by such exercising Person in connection with the exercise of such stock option. (ii) Notwithstanding the amount of the Capital Contribution actually made pursuant to Section 3.11(a)(i), the Corporation shall be deemed to have contributed to the Company as a Capital Contribution, in lieu of the Capital Contribution actually made and in consideration of additional Common Units, an amount equal to the Value of a share of Class A Common Stock as of the date of such exercise multiplied by the number of shares of Class A Common Stock then being issued by the Corporation in connection with the exercise of such stock option. (iii) The Corporation shall receive in exchange for such Capital Contributions (as deemed made under 3.11(a)(ii)), a corresponding number of Units of a class correlative to the class of Equity Securities for which such stock options were granted. (b) Options Granted to LLC Employees. If at any time or from time to time, in connection with any Stock Option Plan, a stock option granted over shares of Class A Common Stock to an LLC Employee is duly exercised: (i) The Corporation shall sell to the Optionee, and the Optionee shall purchase from the Corporation, for a cash price per share equal to the Value of a share of Class A Common Stock at the time of the exercise, the number of shares of Class A Common Stock equal to the quotient of (x) the exercise price payable by the Optionee in connection with the exercise of such stock option divided by (y) the Value of a share of Class A Common Stock at the time of such exercise. (ii) The Corporation shall sell to the Company (or if the Optionee is an employee of, or other service provider to, a Subsidiary, the Corporation shall sell to such Subsidiary), and the Company (or such Subsidiary, as applicable) shall purchase from the Corporation, a number of shares of Class A Common Stock equal to the excess of (x) the number of shares of Class A Common Stock as to which such stock option is being exercised over (y) the number of shares of Class A Common Stock sold pursuant to Section 3.11(b)(i) hereof. The purchase price per share of Class A Common Stock for such sale of shares of Class A Common Stock to the Company (or such Subsidiary) shall be the Value of a share of Class A Common Stock as of the date of exercise of such stock option. (iii) The Company shall transfer to the Optionee (or if the Optionee is an employee of, or other service provider to, a Subsidiary, the Subsidiary shall transfer to the Optionee) at no additional cost to such LLC Employee and as additional |
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39 NY\6520040.7 DRAFT 10-14-2014 expiration of the lock-up period under the lock-up agreements, dated as of [ ], 2014, executed by each Original Member and each Original LLC Optionee. A Member or LLC Optionee desiring to exercise its Redemption Right (the “Redeeming Member”) shall exercise such right by giving written notice (the “Redemption Notice”) to the Company with a copy to the Corporation. The Redemption Notice shall specify the number of Common Units (the “Redeemed Units”) that the Redeeming Member intends to have the Company redeem and a date, not less than seven (7) Business Days nor more than ten (10) Business Days after delivery of the Redemption Notice (unless and to the extent that the Manager in its sole discretion agrees in writing to waive such time periods), on which exercise of the Redemption Right shall be completed (the “Redemption Date”); provided that the Company, the Corporation and the Redeeming Member may change the number of Redeemed Units and/or the Redemption Date specified in the Redemption Notice to another number and/or date by mutual agreement signed in writing by each of them; provided further that a Redemption Notice may be conditioned on the closing of an underwritten distribution of the shares of Class A Common Stock that may be issued at the election of the Corporation in connection with such proposed Redemption. Unless the Redeeming Member timely has delivered a Retraction Notice as provided in Section 11.01(b) or has revoked or delayed a Redemption as provided in Section 11.01(c), on the Redemption Date (to be effective immediately prior to the close of business on the Redemption Date) (i) only in the case of an LLC Optionee, the Redeeming Member shall have completed its exercised of an LLC Option for a corresponding number of Units subject to the Redemption Notice, (ii) the Redeeming Member shall transfer and surrender the Redeemed Units to the Company, free and clear of all liens and encumbrances (which in the case of an LLC Optionee will be deemed to be delivered by the Company in lieu of delivery of the Units underlying the LLC Option to the LLC Optionee), and (ii) the Company shall (x) cancel the Redeemed Units, (y) transfer to the Redeeming Member the consideration to which the Redeeming Member is entitled under Section 11.01(b), and (z), if the Units are certificated, issue to the Redeeming Member a certificate for a number of Common Units equal to the difference (if any) between the number of Common Units evidenced by the certificate surrendered by the Redeeming Member pursuant to clause (i) of this Section 11.01(a) and the Redeemed Units. (b) In exercising its Redemption Right, a Redeeming Member shall be entitled to receive the Share Settlement or the Cash Settlement; provided that the Corporation shall have the option as provided in Section 11.02 and subject to Section 11.01(d) to select whether the redemption payment is made by means of a Share Settlement or a Cash Settlement. Within three (3) Business Days of delivery of the Redemption Notice, the Corporation shall give written notice (the “Contribution Notice”) to the Company (with a copy to the Redeeming Member) of its intended settlement method; provided that if the Corporation does not timely deliver a Contribution Notice, the Corporation shall be deemed to have elected the Share Settlement method. If the Corporation elects the Cash Settlement method, the Redeeming Member may retract its Redemption Notice by giving written notice (the “Retraction Notice”) to the Company (with a copy to the Corporation) within two (2) Business Days of delivery of the Contribution Notice. The timely delivery of a Retraction Notice shall terminate all of the Redeeming Member’s, Company’s and the Corporation’ rights and obligations under this Section 11.01 arising from the Redemption Notice. (c) In the event the Corporation elects a Share Settlement in connection with a Redemption, a Redeeming Member shall be entitled to revoke its Redemption Notice or delay |
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40 NY\6520040.7 DRAFT 10-14-2014 the consummation of a Redemption if any of the following conditions exists: (i) any registration statement pursuant to which the resale of the Class A Common Stock to be registered for such Redeeming Member at or immediately following the consummation of the Redemption shall have ceased to be effective pursuant to any action or inaction by the SEC or no such resale registration statement has yet become effective; (ii) the Corporation shall have failed to cause any related prospectus to be supplemented by any required prospectus supplement necessary to effect such Redemption; (iii) the Corporation shall have exercised its right to defer, delay or suspend the filing or effectiveness of a registration statement and such deferral, delay or suspension shall affect the ability of such Redeeming Member to have its Class A Common Stock registered at or immediately following the consummation of the Redemption; (iv) the Corporation shall have disclosed to such Redeeming Member any material non-public information concerning the Corporation, the receipt of which results in such Redeeming Member being prohibited or restricted from selling Class A Common Stock at or immediately following the Redemption without disclosure of such information (and the Corporation does not permit disclosure); (v) any stop order relating to the registration statement pursuant to which the Class A Common Stock was to be registered by such Redeeming Member at or immediately following the Redemption shall have been issued by the SEC; (vi) there shall have occurred a material disruption in the securities markets generally or in the market or markets in which the Class A Common Stock is then traded; (vii) there shall be in effect an injunction, a restraining order or a decree of any nature of any Governmental Entity that restrains or prohibits the Redemption; (viii) the Corporation shall have failed to comply in all material respects with its obligations under the Registration Rights Agreement, and such failure shall have affected the ability of such Redeeming Member to consummate the resale of Class A Common Stock to be received upon such redemption pursuant to an effective registration statement; (ix) the Redemption Date would occur [three (3)] Business Days or less prior to, or during, a Black-Out Period; provided further, that in no event shall the Redeeming Member seeking to revoke its Redemption Notice or delay the consummation of such Redemption and relying on any of the matters contemplated in clauses (i) through (ix) above have controlled or intentionally influenced any facts, circumstances, or Persons in connection therewith (except in the good faith performance of his or her duties as an officer or director of the Corporation) in order to provide such Redeeming Member with a basis for such delay or revocation. If a Redeeming Member delays the consummation of a Redemption pursuant to this Section 11.01(c), the Redemption Date shall occur on the fifth Business Day following the date on which the conditions giving rise to such delay cease to exist (or such earlier day as the Corporation, the Company and such Redeeming Member may agree in writing). (d) The number of shares of Class A Common Stock or the Redeemed Units Equivalent that a Redeeming Member is entitled to receive under Section 11.01(b) (whether through a Share Settlement or Cash Settlement) shall not be adjusted on account of any Distributions previously made with respect to the Redeemed Units or dividends previously paid with respect to Class A Common Stock; provided, however, that if a Redeeming Member (other than an LLC Optionee) causes the Company to redeem Redeemed Units and the Redemption Date occurs subsequent to the record date for any Distribution with respect to the Redeemed Units but prior to payment of such Distribution, the Redeeming Member shall be entitled to receive such Distribution with respect to the Redeemed Units on the date that it is made notwithstanding that the Redeeming Member transferred and surrendered the Redeemed Units to the Company prior to such date. |
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51 NY\6520040.7 DRAFT 10-14-2014 IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their behalf this Agreement as of the date first written above. COMPANY: XXXX HOLDINGS LLC By: XXXX CORPORATION, its Managing Member By: Name: Title: MEMBERS: WAYZATA OPPORTUNITIES FUND II, L.P. By: WOF II GP, L.P., its General Partner By: WOF II GP, LLC, its General Partner By: Name: Title: WAYZATA OPPORTUNITIES FUND OFFSHORE II, L.P. By: [WOFO II GP, L.P.], its General Partner By: [WOFO II GP, LLC], its General Partner By: Name: Title: XXXX CORPORATION By: Name: Title: |
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NY\6520040.7 DRAFT 10-14-2014 SCHEDULE 1* SCHEDULE OF MEMBERS Member Common Units Percentage Interest Wayzata Opportunities Fund II, L.P. [•] ** [•] Wayzata Opportunities Fund Offshore II, L.P. [•] ** [•] Xxxx Corporation [•] *** [•] Total [•] 100.00000 % * This Schedule of Members reflects the Recapitalization and shall be updated from time to time to reflect any adjustment with respect to any subdivision (by Unit split or otherwise) or any combination (by reverse Unit split or otherwise) of any outstanding Common Units, or to reflect any additional issuances of Common Units pursuant to this Agreement. ** Reflects the Recapitalization and the Over-Allotment Option Redemption (if applicable). *** Reflects the contribution of the IPO Net Proceeds and Over-Allotment Option Net Proceeds (if any). |
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NY\6520040.7 DRAFT 10-14-2014 SCHEDULE 2* SCHEDULE OF LLC OPTIONEES Original LLC Options Number of Common Units Underlying LLC Options** Number of Common Units Underlying LLC Optionees Performance Options Service Options Total Options Performance Options Service Options Total Options Xxxxx Xxxxxxxxxx – 12,573 12,573 [•] [•] [•] Xxxxxx Xxxxxx – 8,801 8,801 [•] [•] [•] Xxxxxx Xxxx 81,750 136,250 218,000 [•] [•] [•] Xxxx Xxxxx 48,750 81,250 130,000 [•] [•] [•] Xxx Xxxxx 22,500 37,500 60,000 [•] [•] [•] Xxxxx Xxxxxx 22,500 37,500 60,000 [•] [•] [•] Xxxx Xxxxxxxx 22,500 37,500 60,000 [•] [•] [•] Xxxx Xxxxxx 13,875 23,125 37,000 [•] [•] [•] Xxxxxx Xxxxxxxxxxx 13,875 23,125 37,000 [•] [•] [•] Xxxxx Xxxxxxxxxx 11,625 19,375 31,000 [•] [•] [•] Xxxxx Xxxxxxxx 13,875 23,125 37,000 [•] [•] [•] Xxx Xxxxxxxxxx 11,625 19,375 31,000 [•] [•] [•] Xxxxx Xxxxxx 5,250 8,750 14,000 [•] [•] [•] Xxx Xxxx 5,250 8,750 14,000 [•] [•] [•] Xxxxxx Xxxxxx 5,250 8,750 14,000 [•] [•] [•] Xxxxx Corner 5,250 8,750 14,000 [•] [•] [•] Total 283,875 494,499 778,374 [•] [•] [•] * This Schedule of LLC Optionees shall be updated from time to time to reflect any adjustment with respect to any subdivision (by Unit split or otherwise) or any combination (by reverse Unit split or otherwise) of any outstanding Common Units, or to reflect any additional issuances of Common Units pursuant to this Agreement. ** This column reflects the Recapitalization. |
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NY\6520040.7 DRAFT 10-14-2014 Acknowledged and agreed as of the date first set forth above: XXXX HOLDINGS LLC By: XXXX CORPORATION, its Managing Member By: Name: Title: |
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EXHIBIT C FORM OF IPO COMMON UNIT PURCHASE AGREEMENT [see attached] |
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3 NY\6528071.5 DRAFT 10-14-2014 “Over-Allotment Option” means the Underwriters’ option to purchase additional Shares from the Corporation in the IPO pursuant to the second paragraph of Section 2 of the Underwriting Agreement. “Over-Allotment Proceeds” means the net proceeds received by the Corporation in exchange for the issuance and sale of Shares in the IPO but solely as a result of the exercise, in whole or in part, by the Underwriters of the Over-Allotment Option. Over-Allotment Proceeds will be calculated as the product of (a) the sum of (i) the price per share at which Shares are sold to the public in the IPO minus (ii) the aggregate underwriting discounts and commissions per share in such offering, multiplied by (b) the number of Shares sold to the public in the IPO solely to the extent of any exercise of the Over-Allotment Option. For the avoidance of doubt, Over- Allotment Proceeds shall not include the Initial Proceeds. “Over-Allotment Units” has the meaning set forth in Section 3.01. “Prospectus” means the final prospectus for the IPO contained in the Registration Statement. “Registration Statement” means the Corporation’s registration statement on Form S-1, file no. 333-198559, as filed with the U.S. Securities and Exchange Commission on the date hereof, together with any other registration statement on Form S-1 that the Corporation may file in connection with the IPO in reliance on Rule 462(b) promulgated under the Securities Act. “Securities Act” means the U.S. Securities Act of 1933, as amended. “Shares” has the meaning set forth in the Recitals. “Transaction Documents” mean the transactional and organizational documents entered into contemporaneously with this Agreement by either the Company, the Corporation or the Wayzata Funds, as applicable, in connection with the IPO. “Underwriters” means each of the financial institutions identified in the Prospectus and in the Underwriting Agreement as an “underwriter” in the IPO, including without limitation the Managing Underwriters. “Underwriting Agreement” means that certain Underwriting Agreement, [dated the date hereof], by and among the Corporation and the managing underwriters, on behalf of the several Underwriters, with respect to the sale of Shares in the IPO. “Wayzata” has the meaning set forth in the Preamble. “Wayzata Funds” has the meaning set forth in the Preamble. “Wayzata Offshore” has the meaning set forth in the Preamble. |
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6 NY\6528071.5 DRAFT 10-14-2014 (a) Each Wayzata Fund shall deliver, or cause to be delivered, the following documents to the Corporation at the Over-Allotment Closing: (i) solely to the extent that the Common Units are certificated, the certificate or certificates representing the Over-Allotment Units being sold to the Corporation (provided that, to the extent a certificate represents more than the exact number of Common Units to be delivered to the Corporation hereunder, then in lieu of the obligation to deliver such certificate(s) to the Corporation the applicable Wayzata Fund may surrender such certificate(s) to the Company for exchange into one or more certificates evidencing (x) the Common Units to be delivered to the Corporation pursuant to this Agreement, which shall be registered in the name of the Corporation and (y) the remaining Common Units to be retained by such Wayzata Fund); and (ii) all other customary documents, instruments or certificates as shall be reasonably requested by the Corporation and as shall be consistent with the terms of this Agreement and which will not require any representations or warranties other than those set forth in Article VI. (b) The Corporation shall deliver, or cause to be delivered, the following to the Wayzata Funds at the Over-Allotment Closing: (i) a letter executed by the Managing Underwriters on behalf of the several Underwriters evidencing the exercise of the Over-Allotment Option by the Underwriters in a form reasonably satisfactory to the Company, which clearly states the total number of Shares with respect to which the Over-Allotment Option has been exercised; (ii) the Over-Allotment Consideration by wire transfer of immediately available funds to the following bank account of the Wayzata Funds: For the Over-Allotment Consideration payable to Wayzata: Bank [ ] Bank Address [ ] ABA Routing No. [ ] Account No. [ ] Beneficiary Name: Wayzata Opportunities Fund II, L.P. For the Over-Allotment Consideration payable to Wayzata Offshore: Bank [ ] Bank Address [ ] ABA Routing No. [ ] Account No. [ ] Beneficiary Name: Wayzata Opportunities Fund Offshore II, L.P. (iii) all other customary documents, instruments or certificates as shall be reasonably requested by the Company and as shall be consistent with the terms of this Agreement; and |
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12 NY\6528071.5 DRAFT 10-14-2014 Closing Date as though made on and as of the Initial Closing Date and, if applicable, the Over- Allotment Closing Date (except to the extent in either case that such representations and warranties speak as of another date); (c) solely with respect to the Initial Closing, the Company shall have delivered, or caused to be delivered, to the Corporation instruments of transfer and other transaction documents, in form and substance reasonably satisfactory to the Corporation, to effect the issue of the Initial Units by the Company and the other transactions contemplated by this Agreement, including those documents identified in Section 2.04(a); and (d) solely with respect to the Over-Allotment Closing, if any, (i) each Wayzata Fund shall have delivered, or caused to be delivered, to the Corporation instruments of transfer and other transaction documents, in form and substance reasonably satisfactory to the Corporation, to effect the sale and transfer of the Over-Allotment Units by the Wayzata Funds and the other transactions contemplated by this Agreement, including those documents identified in Section 3.04(a) and (ii) the Company shall have delivered, or caused to be delivered, to the Corporation instruments of transfer and other transaction documents, in form and substance reasonably satisfactory to the Corporation, to effect the sale and transfer of the Over-Allotment Units by the Wayzata Funds and the other transactions contemplated by this Agreement, including those documents identified in Section 3.04(c). Section 7.03 Conditions to the Obligations of the Company. In addition to the conditions specified in Section 7.01, the obligations of the Company under this Agreement are subject to the fulfillment or waiver of the following conditions: (a) all covenants, agreements and conditions contained in this Agreement to be performed by the Corporation and the Wayzata Funds on or prior to the Initial Closing and, if applicable, the Over-Allotment Closing shall have been performed or complied with in all material respects; (b) each of the representations and warranties of the Corporation and the Wayzata Funds set forth in this Agreement that is qualified as to a material adverse effect shall be true and correct, and each of the representations and warranties of the Corporation set forth in this Agreement that is not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Initial Closing Date and, if applicable, the Over- Allotment Closing Date as though made on and as of the Initial Closing Date and, if applicable, the Over-Allotment Closing Date (except to the extent in either case that such representations and warranties speak as of another date); (c) solely with respect to the Initial Closing, the Corporation shall have delivered to the Company instruments of transfer and other transaction documents, in form and substance reasonably satisfactory to the Company, to effect the issue of the Initial Units by the Company and the other transactions contemplated by this Agreement, including those documents identified in Section 2.04(b); and (d) solely with respect to the Over-Allotment Closing, if any, (i) each Wayzata Fund shall have delivered, or caused to be delivered, to the Company instruments of transfer and other |
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13 NY\6528071.5 DRAFT 10-14-2014 transaction documents, in form and substance reasonably satisfactory to the Company, to effect the sale and transfer of the Over-Allotment Units by the Wayzata Funds and the other transactions contemplated by this Agreement, including those documents identified in Section 3.04(a) and (ii) the Corporation shall have delivered, or caused to be delivered, to the Company instruments of transfer and other transaction documents, in form and substance reasonably satisfactory to the Company, to effect the sale and transfer of the Over-Allotment Units by the Wayzata Funds and the other transactions contemplated by this Agreement, including those documents identified in Section 3.04(b). Section 7.04 Conditions to the Obligations of the Wayzata Funds. In addition to the conditions specified in Section 7.01, the obligations of each Wayzata Fund under this Agreement are subject to the fulfillment or waiver of the following conditions: (a) all covenants, agreements and conditions contained in this Agreement to be performed by the Corporation and by Company on or prior to the Initial Closing shall have been performed or complied with in all material respects; (b) each of the representations and warranties of the Corporation and of the Company set forth in this Agreement that is qualified as to a material adverse effect shall be true and correct, and each of the representations and warranties of the Corporation and of the Company set forth in this Agreement that is not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Over-Allotment Closing Date as though made on and as of the Over-Allotment Closing Date (except to the extent in either case that such representations and warranties speak as of another date); and (c) (i) the Corporation shall have delivered to each Wayzata Fund instruments of transfer and other transaction documents, in form and substance reasonably satisfactory to each Wayzata Fund, to effect the transfer of Over-Allotment Units by such Wayzata fund to the Corporation and the other transactions contemplated by this Agreement, including those documents identified in Section 3.04(b) and (ii) the Company shall have delivered to each Wayzata Fund instruments of transfer and other transaction documents, in form and substance reasonably satisfactory to each Wayzata Fund, to effect the transfer of Over-Allotment Units by such Wayzata fund to the Corporation and the other transactions contemplated by this Agreement, including those documents identified in Section 3.04(c). ARTICLE VIII. TERMINATION If the conditions set forth in Article VII are not satisfied or waived on or before the completion of the IPO or if the Registration Statement is withdrawn for any reason prior to that date, this Agreement shall become null and void and be of no further force or effect whatsoever and none of the Company, the Wayzata Funds or the Corporation shall have any further obligations hereunder or with respect hereto. To the extent that the Over-Allotment Option is not |
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[Signature Page to Common Unit Purchase Agreement] DRAFT 10-14-2014 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. XXXX HOLDINGS LLC By: Name: Title: XXXX CORPORATION By: Name: Title: WAYZATA OPPORTUNITIES FUND II, L.P. By: WOF II GP, L.P., its General Partner By: WOF II GP, LLC, its General Partner By: Name: Title: WAYZATA OPPORTUNITIES FUND OFFSHORE II, L.P. By: WOFO II GP, L.P., its General Partner By: WOFO II GP, LLC, its General Partner By: Name: Title: By: Name: Title: |
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NY\6528071.5 DRAFT 10-14-2014 Exhibit A FORM OF LLC AGREEMENT [See attached] |
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EXHIBIT D FORM OF TAX RECEIVABLE AGREEMENT [see attached] |
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NY\6516862.10 DRAFT 10-14-2014 TAX RECEIVABLE AGREEMENT by and among XXXX CORPORATION WAYZATA OPPORTUNITIES FUND II, L.P. WAYZATA OPPORTUNITIES FUND OFFSHORE II, L.P. the several LLC OPTION HOLDERS (as defined herein) OTHER MEMBERS OF XXXX HOLDINGS LLC FROM TIME TO TIME PARTY HERETO Dated as of [•], 2014 |
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ii NY\6516862.10 DRAFT 10-14-2014 Section 7.6 Assignments; Amendments; Successors; No Waiver 27 Section 7.7 Titles and Subtitles 28 Section 7.8 Resolution of Disputes 28 Section 7.9 Reconciliation 30 Section 7.10 Withholding 30 Section 7.11 Admission of the Corporation into a Consolidated Group; Transfers of Corporate Assets 31 Section 7.12 Confidentiality 31 Section 7.13 Change in Law 32 Section 7.14 Interest Rate Limitation 32 Section 7.15 Independent Nature of Rights and Obligations 32 Exhibits Exhibit A - Form of Joinder Agreement |
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3 NY\6516862.10 DRAFT 10-14-2014 prepared in a manner that is consistent with the terms of this Agreement and, to the extent not expressly provided in this Agreement, on a reasonable basis in light of the facts and law in existence on the date such Schedules, notices or other information were delivered by the Corporation to the Members. “Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person. “Agreed Rate” means LIBOR plus 100 basis points. “Agreement” is defined in the preamble. “Amended Schedule” is defined in Section 2.4(b) of this Agreement. “Attributable” is defined in Section 3.1(b)(i) of this Agreement. “Audit Committee” means the audit committee of the Board. “Basis Adjustment” means the increase or decrease to the tax basis of, or the Corporation’s share of, the tax basis of the Reference Assets (i) under Section 734(b), 743(b) and 754 of the Code and, in each case, the comparable sections of U.S. state and local tax law (in situations where, following an Exchange, Xxxx Holdings remains in existence as an entity for tax purposes) and (ii) under Sections 732 and 1012 of the Code and, in each case, the comparable sections of U.S. state and local tax law (in situations where, as a result of one or more Exchanges, Xxxx Holdings becomes an entity that is disregarded as separate from its owner for tax purposes), in each case, as a result of any Exchange and any payments made under this Agreement. Notwithstanding any other provision of this Agreement, the amount of any Basis Adjustment resulting from an Exchange of one or more Units shall be determined without regard to any Pre-Exchange Transfer of such Units and as if any such Pre-Exchange Transfer had not occurred to the extent that such Pre-Exchange Transfer resulted in the partial or complete elimination of a future Basis Adjustment that the Corporation would have otherwise obtained pursuant to the terms of this Agreement. “Basis Schedule” is defined in Section 2.2 of this Agreement. “Beneficial Owner” means, with respect to any security, a Person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares: (i) voting power, which includes the power to vote, or to direct the voting of, with respect to such security and/or (ii) investment power, which includes the power to dispose of, or to direct the disposition of, such security. “Board” means the Board of Directors of the Corporation. “Book-Tax Disparity” means, with respect to any Reference Asset, as of the date of the Corporation’s Capital Contribution, the difference between the Book Value (as defined in the |
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4 NY\6516862.10 DRAFT 10-14-2014 LLC Agreement) of such Reference Asset and the adjusted basis thereof for U.S. federal income tax purposes as of such date. “Business Day” means any day excluding Saturday, Sunday and any day that is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in New York are closed. “Change Notice” is defined in Section 3.5(a) of this Agreement. “Change of Control” means the occurrence of any of the following events:2F 2 (1) (A) any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934, as amended, or any successor provisions thereto (the “Exchange Act”) but excluding any employee benefit plan of such person and its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, and excluding the Permitted Investors) shall become the “beneficial owner” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of voting stock of the Corporation entitling such “person” or “group” to cast more than thirty-five percent (35%) of the votes eligible to be cast in an election of directors of the Corporation and (B) the Permitted Investors shall own outstanding voting stock of the Corporation having a lesser percentage of the votes eligible to be cast in such an election of the Corporation at such time than the “person” or “group” in the foregoing clause (A); (2) the Corporation ceases to be the sole managing member of Xxxx Holdings; (3) the Corporation or any of its Subsidiaries acquires, by merger, consolidation or otherwise, assets with a gross fair market value, and/or equity interests in an entity with a gross enterprise value, in excess of 50% of the gross enterprise value of the Corporation on the date hereof; provided that for this purpose, the gross enterprise value of the Corporation on the date hereof shall be the fair market value of the outstanding shares of stock of the Corporation (based on the price per share in the IPO) plus the amount of the Corporation’s liabilities as of the date of the IPO; or (4) a “change of control” or similar defined term in any agreement governing indebtedness of Xxxx Holdings or any of its Subsidiaries with aggregate principal amount or aggregate commitments outstanding in excess of $25,000,000. Notwithstanding the foregoing, a “Change of Control” shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the record holders of the Class A Common Stock and Class B Common Stock immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in and 2 INTD: Conform to what we end up with in our amended credit agreements (amendments are a work in process). |
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5 NY\6516862.10 DRAFT 10-14-2014 voting control over, and own substantially all of the shares of, an entity which owns all or substantially all of the assets of the Corporation immediately following such transaction or series of transactions. “Code” means the U.S. Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations promulgated thereunder. “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. “Corporation” is defined in the preamble to this Agreement. “Corporation’s Capital Contribution” is defined in the recitals to this Agreement. “Covered Taxes” means any and all U.S. federal, state, local and foreign taxes, assessments or similar chargers that are based on or measure with respect to net income or profits, whether as an exclusive or an alternative basis, and any interest related thereto. “Cumulative Net Realized Tax Benefit” is defined in Section 3.1(b)(iii) of this Agreement. “Default Rate” means LIBOR plus 500 basis points. “Default Rate Interest” is defined in Section 3.1(b)(ix) of this Agreement. “Determination” shall have the meaning ascribed to such term in Section 1313(a) of the Code or similar provision of U.S. state tax law, as applicable, or any other event (including the execution of IRS Form 870-AD) that finally and conclusively establishes the amount of any liability for tax. “Direct Exchange” is defined in the recitals to this agreement. “Dispute” is defined in Section 7.8(a) of this Agreement. “Early Termination Effective Date” means the date of an Early Termination Notice for purposes of determining the Early Termination Payment. “Early Termination Notice” is defined in Section 4.2 of this Agreement. “Early Termination Payment” is defined in Section 4.3(b) of this Agreement. “Early Termination Rate” means the lesser of (i) 6.50% per annum, compounded annually, and (ii) the Agreed Rate. “Early Termination Reference Date” is defined in Section 4.2 of this Agreement. “Early Termination Schedule” is defined in Section 4.2 of this Agreement. |
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6 NY\6516862.10 DRAFT 10-14-2014 “Estimated Tax Benefit Payment” is defined in Section 3.4 of this Agreement. “Exchange” means any Sale, Direct Exchange, Redemption or Section 734(b) Distribution. “Exchange Date” means the date of any Exchange. “Expert” is defined in Section 7.9 of this Agreement. “Extension Rate Interest” is defined in Section 3.1(b)(viii) of this Agreement. “Final Payment Date” means any date on which a payment is required to be made pursuant to this Agreement. For the avoidance of doubt, the Final Payment Date in respect of a Tax Benefit Payment is determined pursuant to Section 3.1(a) of this Agreement. “GAAP” means generally accepted accounting principles in the United States, as in effect from time to time; provided, however, that if the Corporation notifies the Members that the Corporation requests an amendment to any provision hereof to eliminate the effect of any change in GAAP or in the application thereof occurring after the date of this Agreement (including through the adoption of International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto, “IFRS”) on the operation of such provision (or if the Members notify the Corporation that they request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof (including through the adoption of IFRS), then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. “Hypothetical Tax Liability” means, with respect to any Taxable Year, the hypothetical liability of the Corporation that would arise in respect of Covered Taxes, using the same methods, elections, conventions and similar practices used on the actual relevant Tax Returns of the Corporation but (i) calculating depreciation, amortization, or other similar deductions, or otherwise calculating any items of income, gain, or loss, using the Non-Adjusted Tax Basis as reflected on the Basis Schedule, including amendments thereto for the Taxable Year, (ii) disregarding the requirement under Treasury Regulation Sections 1.704-1(b)(2)(iv)(f)(4) and 1.704-1(b)(4)(i) to make Reverse 704(c) Allocations and (iii) excluding any deduction attributable to Imputed Interest or Actual Interest Amounts for the Taxable Year. For the avoidance of doubt, the Hypothetical Tax Liability shall be determined without taking into account the carryover or carryback of any tax item (or portions thereof) that is attributable to any of the items described in the previous sentence. “Imputed Interest” is defined in Section 3.1(b)(vi) of this Agreement. “Independent Directors” means the members of the Board who are “independent” under the standards set forth in Rule 10A-3 promulgated under the U.S. Securities Exchange Act of |
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7 NY\6516862.10 DRAFT 10-14-2014 1933, as amended, and the corresponding rules of the applicable exchange on which the Class A Common Stock is traded or quoted.3F 3 “IPO” is defined in the recitals to this Agreement “IRS” means the U.S. Internal Revenue Service. “Joinder” means a joinder to this Agreement, in form and substance substantially similar to Exhibit A to this Agreement. “Joinder Requirement” is defined in Section 7.6(a) of this Agreement. “LIBOR” means during any period, a rate per annum equal to (i) the ICE LIBOR rate for a period of one year (“ICE LIBOR”), as published on the applicable Bloomberg screen page (or such other commercially available source providing quotations of ICE LIBOR as may be designated by the Corporation from time to time) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such period, for dollar deposits (for delivery on the first day of such period) with a term equivalent to such period. “LLC Agreement” means that certain Second Amended and Restated Limited Liability Company Agreement of Xxxx Holdings LLC, dated as of the date hereof, as such agreement may be further amended, restated, supplemented and/or otherwise modified from time to time. “LLC Option Holder” is defined in the recitals to this Agreement. “Market Value” shall mean the Common Unit Redemption Price, as defined in the LLC Agreement, determined as of an Early Termination Date. “Members” is defined in the recitals to this Agreement. “Xxxx Holdings” is defined in the recitals to this Agreement. “Net Tax Benefit” is defined in Section 3.1(b)(ii) of this Agreement. “Non-Adjusted Tax Basis” means, with respect to any Reference Asset at any time, the tax basis that such asset would have had at such time if no Basis Adjustments had been made. “Objection Notice” is defined in Section 2.4(a)(i) of this Agreement. “Over-Allotment Option” is defined in the recitals to this Agreement. 3 INTD: There is no single standard for “independent”, so I’ve used the audit committee independence requirements which will exclude anyone affiliated with the Corporation (i.e., Wayzata directors would not be independent for this purpose). |
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8 NY\6516862.10 DRAFT 10-14-2014 “Parties” means the parties named on the signature pages to this agreement and each additional party that satisfies the Joinder Requirement, in each case with their respective successors and assigns. “Person” means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, governmental entity or other entity. “Permitted Investors” shall mean private investment funds managed by Wayzata Investment Partners, LLC and its Affiliates (excluding any portfolio company). “Pre-Exchange Transfer” means any transfer of one or more Units (including upon the death of a Member or upon the issuance of Units resulting from the exercise of an option to acquire such Units) (i) that occurs after the IPO but prior to an Exchange of such Units and (ii) to which Section 743(b) of the Code applies. “Realized Tax Benefit” is defined in Section 3.1(b)(iv) of this Agreement. “Realized Tax Detriment” is defined in Section 3.1(b)(v) of this Agreement. “Reconciliation Dispute” is defined in Section 7.9 of this Agreement. “Reconciliation Procedures” is defined in Section 2.4(a) of this Agreement. “Redemption” has the meaning in the recitals to this Agreement. “Reference Asset” means any tangible or intangible asset of Xxxx Holdings or any of its successors or assigns, and whether held directly by XXXX Holdings or indirectly by Xxxx Holdings through any entity in which Xxxx Holdings now holds or may subsequently hold an ownership interest, at the time of an Exchange. A Reference Asset also includes any asset the tax basis of which is determined, in whole or in part, by reference to the tax basis of an asset that is described in the preceding sentence, including “substituted basis property” within the meaning of Section 7701(a)(42) of the Code. “Reserve Notice” is defined in Section 3.5(b). “Reverse 704(c) Allocations” means, in accordance with Treasury Regulation Sections 1.704-1(b)(2)(iv)(f)(4) and 1.704-1(b)(4)(i), allocations of items of taxable income, gain, loss and deduction to take into account any Book-Tax Disparity of any Reference Asset on the date of the Corporation’s Capital Contribution in the same manner as under Section 704(c) of the Code using the traditional method as described in Treasury Regulation Section 1.704-3(b). “Reverse 704(c) Schedule” is defined in Section 2.2 of this Agreement “Sale” is defined in the recitals to this Agreement. |
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9 NY\6516862.10 DRAFT 10-14-2014 “Schedule” means any of the following: (i) a Basis Schedule, (ii) Reverse 704(c) Schedule, (iii) a Tax Benefit Schedule, or (iv) the Early Termination Schedule, and, in each case, any amendments thereto. “Section 734(b) Distribution” means any actual or deemed distribution to any Member by Xxxx Holdings to which Section 734(b)(1) of the Code (or any similar sections of U.S. state and local tax law) applies. “Senior Obligations” is defined in Section 5.1 of this Agreement. “Subsidiary” means, with respect to any Person and as of the date of any determination, any other Person as to which such Person, owns, directly or indirectly, or otherwise controls, more than 50% of the voting power or other similar interests, or the sole general partner interest, or managing member or similar interest, of such Person. “Subsidiary Stock” means any stock or other equity interest in any subsidiary entity of the Corporation that is treated as a corporation for U.S. federal income tax purposes. “Tax Benefit Payment” is defined in Section 3.1(b) of this Agreement. “Tax Benefit Schedule” is defined in Section 2.3(a) of this Agreement. “Tax Return” means any return, declaration, report or similar statement required to be filed with respect to taxes (including any attached schedules), including, without limitation, any information return, claim for refund, amended return and declaration of estimated tax. “Taxable Year” means a taxable year of the Corporation as defined in Section 441(b) of the Code or comparable section of U.S. state or local tax law, as applicable (and, therefore, for the avoidance of doubt, may include a period of less than 12 months for which a Tax Return is made), ending on or after the closing date of the IPO. “Taxing Authority” shall mean any national, federal, state, county, municipal, or local government, or any subdivision, agency, commission or authority thereof, or any quasigovernmental body, or any other authority of any kind, exercising regulatory or other authority in relation to tax matters. “Termination Objection Notice” is defined in Section 4.2 of this Agreement. “Treasury Regulations” means the final, temporary, and (to the extent they can be relied upon) proposed regulations under the Code, as promulgated from time to time (including corresponding provisions and succeeding provisions) as in effect for the relevant taxable period. “True-Up” is defined in Section 3.4 of this Agreement. “U.S.” means the United States of America. “Units” is defined in the recitals to this Agreement. |
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10 NY\6516862.10 DRAFT 10-14-2014 “Valuation Assumptions” shall mean, as of an Early Termination Effective Date, the assumptions that: (1) in each Taxable Year ending on or after such Early Termination Effective Date, the Corporation will have taxable income sufficient to fully use the deductions arising from the Basis Adjustments, the Reverse 704(c) Allocations and the Imputed Interest during such Taxable Year or future Taxable Years (including, for the avoidance of doubt, Basis Adjustments and Imputed Interest that would result from future Tax Benefit Payments that would be paid in accordance with the Valuation Assumptions) in which such deductions would become available; (2) the U.S. federal income tax rates and U.S. state income tax rates that will be in effect for each such Taxable Year will be those specified for each such Taxable Year by the Code and other law as in effect on the Early Termination Effective Date, except to the extent any change to such tax rates for such Taxable Year have already been enacted into law; (3) all taxable income of the Corporation will be subject to the maximum applicable tax rates for each Covered Tax throughout the relevant period; (4) any loss carryovers or carrybacks generated by any Basis Adjustment, Reverse 704(c) Allocations or Imputed Interest (including such Basis Adjustment and Imputed Interest generated as a result of payments under this Agreement) and available as of the date of the Early Termination Schedule will be used by the Corporation on a pro rata basis from the date of the Early Termination Schedule through the scheduled expiration date of such loss carryovers or carrybacks; (5) any non-amortizable assets (other than Subsidiary Stock) will be disposed of on the earlier of (i) the fifteenth anniversary of the applicable Basis Adjustment and (ii) the Early Termination Effective Date; (6) any Subsidiary Stock will be deemed never to be disposed of; (7) if, on the Early Termination Effective Date, (i) any Member has Units that have not been Exchanged, then such Units shall be deemed to be Exchanged for the Market Value of the shares of Class A Common Stock that would be received by such Member if such Units had been Exchanged on the Early Termination Effective Date, and such Member shall be deemed to receive the amount of cash such Member would have been entitled to pursuant to Section 4.3(a) had such Units actually been Exchanged on the Early Termination Effective Date and (ii) any LLC Option Holder has options that have not been exercised in exchange for Units, then such options shall be deemed to have been exercised in accordance with the terms thereof and such Units deemed to be received in connection with such exercise shall be deemed to be Exchanged for the Market Value of the shares of Class A Common Stock that would be received by such LLC Option Holder if such Units had been Exchanged on the Early Termination Effective Date, and such LLC Option Holder shall be deemed to receive the amount of cash such LLC Option Holder would have been entitled to pursuant to Section 4.3(a) had such options actually |
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16 NY\6516862.10 DRAFT 10-14-2014 Tax Benefit Payment previously paid by the Corporation to the Members (including any portion of any Estimated Tax Benefit Payment or any Early Termination Payment). (b) Amount of Payments. For purposes of this Agreement, a “Tax Benefit Payment” with respect to any Member means an amount, not less than zero, equal to the sum of: (i) the Net Tax Benefit that is Attributable to such Member (including Imputed Interest calculated in respect of such amount); and (ii) the Actual Interest Amount. (i) Attributable. A Net Tax Benefit is “Attributable” to a Member to the extent that it is derived from any Basis Adjustment, Imputed Interest, or Actual Interest Amount that is attributable to an Exchange undertaken by or with respect to such Member or is attributable to a Reverse Section 704(c) Allocation that otherwise would have been allocated to such Member if Xxxx Holdings was not required to make such Reverse Section 704(c) Allocation. (ii) Net Tax Benefit. The “Net Tax Benefit” for a Taxable Year equals the amount of the excess, if any, of (x) 85% of the Cumulative Net Realized Tax Benefit as of the end of such Taxable Year over (y) the aggregate amount of all Tax Benefit Payments previously made to such Member under this Section 3.1. For the avoidance of doubt, if the Cumulative Net Realized Tax Benefit as of the end of any Taxable Year is less than the aggregate amount of all Tax Benefit Payments previously made to a Member, such Member shall not be required to return any portion of any Tax Benefit Payment previously made by the Corporation to such Member. (iii) Cumulative Net Realized Tax Benefit. The “Cumulative Net Realized Tax Benefit” for a Taxable Year equals the cumulative amount of Realized Tax Benefits for all Taxable Years of the Corporation, up to and including such Taxable Year, net of the cumulative amount of Realized Tax Detriments for the same period. The Realized Tax Benefit and Realized Tax Detriment for each Taxable Year shall be determined based on the most recent Tax Benefit Schedule or Amended Schedule, if any, in existence at the time of such determination. (iv) Realized Tax Benefit. The “Realized Tax Benefit” for a Taxable Year equals the excess, if any, of the Hypothetical Tax Liability over the actual liability of the Corporation for Covered Taxes. If all or a portion of the actual liability for such Covered Taxes for the Taxable Year arises as a result of an audit by a Taxing Authority of any Taxable Year, such liability shall not be included in determining the Realized Tax Benefit unless and until there has been a Determination. (v) Realized Tax Detriment. The “Realized Tax Detriment” for a Taxable Year equals the excess, if any, of the actual liability of the Corporation for Covered Taxes over the Hypothetical Tax Liability for such Taxable Year. If all or a portion of the actual liability for such Covered Taxes for the Taxable Year arises as a result of an audit by a Taxing Authority of any Taxable Year, such liability shall not be included in determining the Realized Tax Detriment unless and until there has been a Determination. |
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22 NY\6516862.10 DRAFT 10-14-2014 Benefit Payments that are due and payable under this Agreement but that still remain unpaid as of the date of the Early Termination Notice; and (ii) current Tax Benefit Payment due for the Taxable Year ending on or including the date of the Early Termination Notice (except to the extent that the amount described in clause (ii) is included in the calculation of the Early Termination Payment). If an Exchange subsequently occurs with respect to Units for which the Corporation has exercised its termination rights under this Section 4.1(a), the Corporation shall have no obligations under this Agreement with respect to such Exchange. (b) Acceleration Upon Change of Control. In the event of a Change of Control, all obligations hereunder shall be accelerated and such obligations shall be calculated pursuant to this Article IV as if an Early Termination Notice had been delivered on the closing date of the Change of Control and utilizing the Valuation Assumptions by substituting the phrase “the closing date of a Change of Control” in each place where the phrase “Early Termination Effective Date” appears. Such obligations shall include, but not be limited to, (1) the Early Termination Payment calculated as if an Early Termination Notice had been delivered on the closing date of the Change of Control, (2) any Tax Benefit Payments agreed to by the Corporation and the Members as due and payable but unpaid as of the Early Termination Notice and (3) any Tax Benefit Payments due for any Taxable Year ending prior to, with or including the closing date of a Change of Control (except to the extent that any amounts described in clauses (2) or (3) are included in the Early Termination Payment). For the avoidance of doubt, Sections 4.2 and 4.3 shall apply to a Change of Control, mutadis mutandi. (c) Acceleration Upon Breach of Agreement. In the event that the Corporation materially breaches any of its material obligations under this Agreement, whether as a result of failure to make any payment when due, failure to honor any other material obligation required hereunder, or by operation of law as a result of the rejection of this Agreement in a case commenced under the Bankruptcy Code or otherwise, then all obligations hereunder shall be accelerated and become immediately due and payable upon notice of acceleration from such Member (provided that in the case of any proceeding under the Bankruptcy Code or other insolvency statute, such acceleration shall be automatic without any such notice), and such obligations shall be calculated as if an Early Termination Notice had been delivered on the date of such notice of acceleration (or, in the case of any proceeding under the Bankruptcy Code or other insolvency statute, on the date of such breach) and shall include, but not be limited to: (i) the Early Termination Payment calculated as if an Early Termination Notice had been delivered on the date of such acceleration; (ii) any prior Tax Benefit Payments that are due and payable under this Agreement but that still remain unpaid as of the date of such acceleration; and (iii) any current Tax Benefit Payment due for the Taxable Year ending with or including the date of such acceleration. Notwithstanding the foregoing, in the event that the Corporation breaches this Agreement and such breach is not a material breach of a material obligation, a Member shall still be entitled to enforce all of its rights otherwise available under this Agreement, including potentially seeking an acceleration of amounts payable under this Agreement. For purposes of this Section 4.1(c), and subject to the following sentence, the Parties agree that the failure to make any payment due pursuant to this Agreement within thirty (30) days of the relevant Final Payment Date shall be deemed to be a material breach of a material obligation under this Agreement for all purposes of this Agreement, and that it will not be considered to be a material breach of a material obligation under this Agreement to make a payment due pursuant to this |
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25 NY\6516862.10 DRAFT 10-14-2014 ARTICLE VI. TAX MATTERS; CONSISTENCY; COOPERATION Section 6.1 Participation in the Corporation’s and Xxxx Holdings’ Tax Matters. Except as otherwise provided herein, and except as provided in Article IX of the LLC Agreement, the Corporation shall have full responsibility for, and sole discretion over, all tax matters concerning the Corporation and Xxxx Holdings, including without limitation the preparation, filing or amending of any Tax Return and defending, contesting or settling any issue pertaining to taxes. Notwithstanding the foregoing, the Corporation shall notify the Members of, and keep them reasonably informed with respect to, the portion of any tax audit of the Corporation or Xxxx Holdings, or any of Xxxx Holdings’ Subsidiaries, the outcome of which is reasonably expected to materially affect the Tax Benefit Payments payable to such Members under this Agreement, and such Members shall have the right to participate in and to monitor at their own expense (but, for the avoidance of doubt, not to control) any such portion of any such Tax audit. Section 6.2 Consistency. All calculations and determinations made hereunder, including, without limitation, any Basis Adjustments, Reverse Section 704(c) Allocations, the Schedules, and the determination of any Realized Tax Benefits or Realized Tax Detriments, shall be made in accordance with the elections, methodologies or positions taken by the Corporation and Xxxx Holdings on their respective Tax Returns. Each Member shall prepare its Tax Returns in a manner that is consistent with the terms of this Agreement, and any related calculations or determinations that are made hereunder, including, without limitation, the terms of Section 2.1 of this Agreement and the Schedules provided to the Members under this Agreement. In the event that an Advisory Firm is replaced with another Advisory Firm acceptable to the Audit Committee, such replacement Advisory Firm shall perform its services under this Agreement using procedures and methodologies consistent with the previous Advisory Firm, unless otherwise required by law or unless the Corporation and all of the Members agree to the use of other procedures and methodologies. Section 6.3 Cooperation. (a) Each Member shall (i) furnish to the Corporation in a timely manner such information, documents and other materials as the Corporation may reasonably request for purposes of making any determination or computation necessary or appropriate under this Agreement, preparing any Tax Return or contesting or defending any audit, examination or controversy with any Taxing Authority, (ii) make itself available to the Corporation and its representatives to provide explanations of documents and materials and such other information as the Corporation or its representatives may reasonably request in connection with any of the matters described in clause (i) above, and (iii) reasonably cooperate in connection with any such matter. (b) The Corporation shall reimburse the Members for any reasonable and documented out-of-pocket costs and expenses incurred pursuant to Section 6.3(a). |
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29 NY\6516862.10 DRAFT 10-14-2014 upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of the arbitration shall be Miami, Florida. (b) Notwithstanding the provisions of paragraph (a), any Party may bring an action or special proceeding in any court of competent jurisdiction for the purpose of compelling another Party to arbitrate, seeking temporary or preliminary relief in aid of an arbitration hereunder, and/or enforcing an arbitration award and, for the purposes of this paragraph (b), each Party (i) expressly consents to the application of paragraph (c) of this Section 7.8 to any such action or proceeding, and (ii) agrees that proof shall not be required that monetary damages for breach of the provisions of this Agreement would be difficult to calculate and that remedies at law would be inadequate. For the avoidance of doubt, this Section 7.8 shall not apply to Reconciliation Disputes to be settled in accordance with the procedures set forth in Section 7.9. (c) Each Party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Chancery Court of the State of Delaware or, if such Court declines jurisdiction, the courts of the State of Delaware sitting in Wilmington, Delaware, and of the U.S. District Court for the District of Delaware sitting in Wilmington, Delaware, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or for recognition or enforcement of any judgment, and each of the Parties hereto irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such Delaware State court or, to the fullest extent permitted by applicable law, in such U.S. District Court. Each Party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. (d) Each Party irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in Section 7.8(c). Each Party irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of any such suit, action or proceeding in any such court. (e) Each Party irrevocably consents to service of process by means of notice in the manner provided for in Section 7.1. Nothing in this Agreement shall affect the right of any Party to serve process in any other manner permitted by law. (f) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). (g) Any dispute as to whether a dispute is a Reconciliation Dispute within the meaning of Section 7.9, or a Dispute within the meaning of this Section 7.8, shall be decided and resolved as a Dispute subject to the procedures set forth in this Section 7.8. |
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33 NY\6516862.10 DRAFT 10-14-2014 shall a Member or an LLC Option Holder have the right to enforce the rights or obligations of any other Person hereunder (other than the Corporation). The obligations of a Member or an LLC Option Holder hereunder are solely for the benefit of, and shall be enforceable solely by, the Corporation. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Member or LLC Option Holder pursuant hereto or thereto, shall be deemed to constitute the Members and/or LLC Option Holders acting as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Members and/or LLC Option Holders are in any way acting in concert or as a group with respect to such rights or obligations or the transactions contemplated hereby, and the Corporation acknowledges that the Members and LLC Option Holders are not acting in concert or as a group and will not assert any such claim with respect to such rights or obligations or the transactions contemplated hereby. [Signature Page Follows This Page] |
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[Signature Page to Tax Receivable Agreement] NY\6516862.10 DRAFT 10-14-2014 IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their behalf this Agreement as of the date first written above. CORPORATION: XXXX CORPORATION By: Name: Title: MEMBERS: WAYZATA OPPORTUNITIES FUND II, L.P. By: WOF II GP, L.P., its General Partner By: WOF II GP, LLC, its General Partner By: Name: Title: WAYZATA OPPORTUNITIES FUND OFFSHORE, L.P. By: [WOFO II GP, L.P.], its General Partner By: [WOFO II GP, LLC], its General Partner By: Name: Title: XXXX HOLDINGS: XXXX HOLDINGS LLC By: Name: Title: |
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35 NY\6516862.10 DRAFT 10-14-2014 LLC OPTION HOLDERS Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxx Xxxxxx Xxxx Xxxx Xxxxx Xxx Xxxxx Xxxxx Xxxxxx Xxxx Xxxxxxxx Xxxx Xxxxxx |
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36 NY\6516862.10 DRAFT 10-14-2014 |
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37 NY\6516862.10 DRAFT 10-14-2014 Xxxxxx Xxxxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxx Xxxxxxxx Xxx Xxxxxxxxxx Xxxxx Xxxxxx Xxx Xxxx Xxxxxx Xxxxxx Xxxxx Corner |
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[Exhibit A] NY\6516862.10 DRAFT 10-14-2014 Acknowledged and agreed as of the date first set forth above: XXXX CORPORATION By: Name: Title: |
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EXHIBIT E FORM OF AMENDED XXXX HOLDINGS LLC MANAGEMENT EQUITY PLAN [see attached] |