bid930201910qex101verb4b






                                                                Execution Version                               CREDIT AGREEMENT                                                              Article I Definitions ........................................................................................................................ 6                                                                                                              SECTION 1.01   Defined Terms ............................................................................................... 6                                  DATED AS OF                                 OCTOBER 2, 2019                                                              SECTION 1.02   Terms Generally........................................................................................... 52                                                                                                              SECTION 1.03   Classification of Loans and Borrowings ...................................................... 53                                     AMONG                                                                                                              SECTION 1.04   Cashless Roll ................................................................................................ 54                           BIDFAIR MERGERIGHT INC.,                                                           SECTION 1.05   Limited Condition Transaction .................................................................... 54                                 AS BORROWER                                                                                                              SECTION 1.06   Letters of Credit ........................................................................................... 55                          THE LENDERS PARTY HERETO                                                            SECTION 1.07   LIBO Rate Discontinuation ......................................................................... 55                                                                                                              SECTION 1.08   [Reserved.] ................................................................................................... 56                                       AND                                                                                                              SECTION 1.09   Agreed Security Principles .......................................................................... 56                                  BNP PARIBAS,                                                                SECTION 1.10   Subsidiary Revolver Borrower. ................................................................... 56                           AS ADMINISTRATIVE AGENT                                                                                                            Article II The Credits .................................................................................................................... 58                                                                                                              SECTION 2.01   Commitments ............................................................................................... 58                 DEUTSCHE BANK TRUST COMPANY AMERICAS,                                                        SECTION 2.02   Loans ............................................................................................................ 59                             AS COLLATERAL AGENT                                                              SECTION 2.03   Borrowing Procedure ................................................................................... 60                                                                                                              SECTION 2.04   Evidence of Debt; Repayment of Loans ...................................................... 60                                                                                                              SECTION 2.05   Fees .............................................................................................................. 61                        BNP PARIBAS SECURITIES CORP.,                                                                                                              SECTION 2.06   Interest on Loans .......................................................................................... 63                                                                                                              SECTION 2.07   Default Interest............................................................................................. 63                                                                                                              SECTION 2.08   Alternate Rate of Interest ............................................................................. 63                                                                                                              SECTION 2.09   Termination or Reduction of Commitments ................................................ 64                                                                                                              SECTION 2.10   Conversion and Continuation of Borrowings .............................................. 65                                                                                                              SECTION 2.11   Repayment of Borrowings ........................................................................... 67                                                                                                              SECTION 2.12   Voluntary Prepayments ................................................................................ 68                                                                                                              SECTION 2.13   Mandatory Prepayments .............................................................................. 76                       AS JOINT BOOKRUNNERS AND LEAD                                                          SECTION 2.14   Reserve Requirements; Change in Circumstances ...................................... 80                                   ARRANGERS                                                                                                              SECTION 2.15   Change in Legality ....................................................................................... 81                                                                                                              SECTION 2.16   Breakage ...................................................................................................... 82                                                                                                              SECTION 2.17   Pro Rata Treatment ...................................................................................... 83                                                                                                              SECTION 2.18   Sharing of Setoffs ........................................................................................ 83                                                                                                              SECTION 2.19   Payments ...................................................................................................... 84                                                                                                              SECTION 2.20   Taxes ............................................................................................................ 84                                                                                                              SECTION 2.21   Assignment of Commitments Under Certain Circumstances; Duty to                                                                                                                              Mitigate ........................................................................................................ 88                                                                                                                                                    i  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.1776797407_20                                                                             EU-DOCS\25892879.17 





 






  SECTION 2.22   Incremental Loans ........................................................................................ 90 Article IV Conditions of Lending ............................................................................................... 126   SECTION 2.23   Extension Amendments ............................................................................... 94 SECTION 4.01 Conditions to Effectiveness ....................................................................... 126   SECTION 2.24   Refinancing Amendments ............................................................................ 97 SECTION 4.02 Conditions to Initial Funding ..................................................................... 126   SECTION 2.25   Defaulting Lenders..................................................................................... 102 SECTION 4.03 Conditions to All Credit Extensions .......................................................... 129   SECTION 2.26   Letters of Credit ......................................................................................... 103 SECTION 4.04 Conditions to the Delayed Draw Term Loans ........................................... 130   SECTION 2.27   Swing Line Loans ...................................................................................... 114 Article V Covenants .................................................................................................................... 130 Article III Representations and Warranties ................................................................................. 118 SECTION 5.01 Projections.................................................................................................. 131   SECTION 3.01   Existence, Qualification and Power ........................................................... 118 SECTION 5.02 Certificates; Other Information .................................................................. 131   SECTION 3.02   Authorization; No Contravention .............................................................. 118 SECTION 5.03 Notices ....................................................................................................... 132   SECTION 3.03   Governmental Authorization; Other Consents........................................... 119   SECTION 5.04   Payment of Obligations.............................................................................. 132   SECTION 3.04   Binding Effect ............................................................................................ 119 SECTION 5.05 Preservation of Existence ........................................................................... 133   SECTION 3.05   Financial Statements; No Material Adverse Effect ................................... 119    SECTION 5.06   Maintenance of Properties ......................................................................... 133   SECTION 3.06   Litigation .................................................................................................... 120 SECTION 5.07 Maintenance of Insurance .......................................................................... 133   SECTION 3.07   No Default .................................................................................................. 120 SECTION 5.08 Compliance with Laws .............................................................................. 133   SECTION 3.08   Ownership of Properties; Liens; Debt ........................................................ 120 SECTION 5.09 Books and Records; Accountants; Maintenance of Ratings ...................... 133   SECTION 3.09   Environmental Compliance ....................................................................... 121 SECTION 5.10 Inspection Rights ....................................................................................... 134   SECTION 3.10   Insurance .................................................................................................... 121 SECTION 5.11 Use of Proceeds.......................................................................................... 134   SECTION 3.11   Taxes .......................................................................................................... 122 SECTION 5.12 Information Regarding the Collateral ........................................................ 134   SECTION 3.12   Benefit Plans .............................................................................................. 122 SECTION 5.13 Further Assurances..................................................................................... 134   SECTION 3.13   Subsidiaries; Capital Stock ........................................................................ 123 SECTION 5.14 Post-Closing Guarantee and Security Requirements ................................. 135   SECTION 3.14   Margin Regulations; Investment Company Act ........................................ 123     SECTION 5.15   Sanctions .................................................................................................... 137   SECTION 3.15   Disclosure .................................................................................................. 123 SECTION 5.16 People with Significant Control Regime ................................................... 137   SECTION 3.16   Compliance with Laws .............................................................................. 124 Article VI Financial Covenant .................................................................................................... 137   SECTION 3.17   Intellectual Property; Licenses, Etc ........................................................... 124 SECTION 6.01 Financial Covenant .................................................................................... 138   SECTION 3.18   Labor Matters ............................................................................................. 124 Article VII Events of Default ...................................................................................................... 138   SECTION 3.19   Security Documents ................................................................................... 124 SECTION 7.01 Events of Default ....................................................................................... 138   SECTION 3.20   Solvency ..................................................................................................... 124 SECTION 7.02 Application of Funds.................................................................................. 141   SECTION 3.21   Trade Relations .......................................................................................... 125 SECTION 7.03     ........................................................................... 142   SECTION 3.22   Material Contracts ...................................................................................... 125 SECTION 7.04 Withdrawal Event ...................................................................................... 144   SECTION 3.23   Financial Sanctions List ............................................................................. 125 Article VIII The Administrative Agent; etc. ............................................................................... 144   SECTION 3.24   Sanctions .................................................................................................... 125 Article IX Miscellaneous ............................................................................................................ 150   SECTION 3.25   Anti-Terrorism; Anti-Corruption ............................................................... 125 SECTION 9.01 Notices; Electronic Communications ........................................................ 150   SECTION 3.26   Center of Main Interest .............................................................................. 126 SECTION 9.02 Survival of Agreement ............................................................................... 154                                          ii                                                                                                        iii  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






  SECTION 9.03   Binding Effect ............................................................................................ 154 Schedule 2.01  Lenders and Commitments................................................................................. 172   SECTION 9.04   Successors and Assigns.............................................................................. 155 Schedule 3.01  Organizational Information of Loan Parties ....................................................... 173   SECTION 9.05   Expenses; Indemnity .................................................................................. 161 Schedule 3.08(c)  Existing Indebtedness .................................................................................... 174   SECTION 9.06   Right of Setoff............................................................................................ 163 Schedule 3.12(c)  U.K. Pension Plans ........................................................................................ 175   SECTION 9.07   Applicable Law .......................................................................................... 164 Schedule 3.13  Subsidiaries and Capital Stock ........................................................................... 176   SECTION 9.08   Waivers; Amendments ............................................................................... 164 Schedule 5.14(a)  Initial U.S. Loan Party ................................................................................... 177   SECTION 9.09   Interest Rate Limitation ............................................................................. 166 Schedule 5.14(b)  Initial Non-U.S. Loan Party ........................................................................... 178    SECTION 9.10   Entire Agreement ....................................................................................... 167 Schedule 5.14(c)  Luxemburg Documents; U.K. Documents .................................................... 178    SECTION 9.11   Waiver of Jury Trial ................................................................................... 167                      ......................................................................... 179   SECTION 9.12   Severability ................................................................................................ 167                                       ............................ 180   SECTION 9.13   Counterparts ............................................................................................... 167     SECTION 9.14   Headings .................................................................................................... 168                                                                                                            EXHIBITS    SECTION 9.15   Jurisdiction; Consent to Service of Process ............................................... 168   SECTION 9.16   Confidentiality ........................................................................................... 168 Exhibit A Form of Administrative Questionnaire ...................................................................... 181   SECTION 9.17   Lender Action; Intercreditor Agreement ................................................... 169 Exhibit B Form of Assignment and Acceptance......................................................................... 182   SECTION 9.18   USA PATRIOT Act Notice ....................................................................... 170 Exhibit C-1 Form of Revolving Credit Borrowing Request ....................................................... 182   SECTION 9.19   No Fiduciary Duty ..................................................................................... 170 Exhibit C-2 Form of Swing Line Borrowing Request ................................................................ 182   SECTION 9.20   Release of Liens ......................................................................................... 170 Exhibit C-3 Form of Term Borrowing Request .......................................................................... 182   SECTION 9.21   Judgment Currency .................................................................................... 172 Exhibit D  Form of Intercreditor Agreement .............................................................................. 182   SECTION 9.22   Acknowledgement and Consent to Bail-In of Applicable Financial                            Exhibit E Form of Affiliated Lender/Borrower Assignment and Acceptance ........................... 183                  Institutions.................................................................................................. 172 Exhibit F-1 Form of Facility Guaranty ....................................................................................... 183   SECTION 9.23   Acknowledgement Regarding Any Supported QFCs ................................ 173         Exhibit F-2 Form of U.S. Pledge and Security Agreement ........................................................ 183   SECTION 9.24   Certain ERISA Matters .............................................................................. 174 Exhibit G Form of Promissory Note ........................................................................................... 184                                                                                                            Exhibit H-1 Form of Non-Bank Tax Certificate (For Non-U.S. Lenders that are not                                                                                                              Partnerships) ............................................................................................................................ 184                                    ANNEXES                                                                                                             Exhibit H-2 Form of Non-Bank Tax Certificate (For Non-U.S. Participants that are not                                                                                                              Partnerships) ............................................................................................................................ 184                                                                                                            Exhibit H-3 Form of Non-Bank Tax Certificate (For Non-U.S. Participants that are  Annex I Covenants ...................................................................................................................... 168 Partnerships) ............................................................................................................................ 184 Annex II Additional Definitions ................................................................................................. 169 Exhibit H-4 Form of Non-Bank Tax Certificate (For Non-U.S. Lenders that are                                                                                                              Partnerships) ............................................................................................................................ 184                                                                                                            Exhibit I Form of Solvency Certificate ....................................................................................... 185 SCHEDULES                                                                                                             Exhibit J Form of Compliance Certificate .................................................................................. 186 Schedule 1.01  Non-U.S. Security Documents ........................................................................... 170   Schedule 1.09  Agreed Security Principles ................................................................................. 171                                        iv                                                                                                         v  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






CREDIT  AGREEMENT,  dated  as  of  October  2,  2019  (as  amended,  amended  and  restated,                      Acquisition Agreement                                                        Agreement                                           16, 2019, among BidFair USA Inc., a  Delaware corporation (formerly known as BidFair USA                                          Merger  Sub                                                        LLC, a Delaware limited liability company), Merger Sub and the Target.  consummation of the Borrower Merger (as defined below) and as further defined in Section 1.01,      Borrower                                                                                                      Additional Lender this introductory statement having the meaning given it in Article I) party hereto and BNP Paribas         to provide Incremental Loan Commitments pursuant to Section 2.22 or Refinancing Commitments    BNP                                                                                                      pursuant to Section 2.24.      Administrative Agent collateral agent (in such capacity, including any su       Collateral Agent                                       Adjusted  LIBO  Rate Lenders.                                                                                                   Interest Period, (a) in the case of the Initial Term Loans, an interest rate per annum equal to the                                                                                                             greater of (i) 1.00% per annum and (ii) the LIBO Rate in effect for such Interest Period and (b) in        WHEREAS,  the  Borrower  has  requested  the  Lenders  to extend credit  in  the form  of            the case of the Initial Revolving Credit Loans, an interest rate per annum equal to the LIBO Rate  (i) Initial Term Loans in an aggregate principal amount not in excess of $500,000,000 which shall          in effect for such Interest Period.  be available in up to two drawings as set forth herein, and (ii) Revolving Credit Commitments in  an  initial  aggregate  principal  amount  not  in  excess  of  $400,000,000.   The  Revolving  Credit            Administrative Agent Commitments permit the issuance of one or more Letters of Credit from time to time and the                 statement to this Agreement.  making of one or more Revolving Credit Loans and/or Swing Line Loans from time to time; and                                                                                                                    Administrative Borrower       WHEREAS, the Lenders are willing to extend such credit to the Borrower on the terms                  (b) upon the effectiveness of the Borrower Merger, Target.  and subject to the conditions set forth herein.                                                                                                                    Administrative Questionnaire       NOW THEREFORE, in consideration of the mutual agreements, provisions and covenants                   of Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.  contained herein, the parties hereto agree as follows:                                                                                                                    Affiliated Lender                                    ARTICLE I                                                               Affiliates and funds or partnerships managed or advised by them, but in any event excluding                                                                                                             (a) any portfolio company of any of the forgoing and (b) any Group Member.                                    DEFINITIONS                                                                                                                    Affiliated  Lender  Cap                                            Section        SECTION 1.01       Defined  Terms.   Save  where  specified  to  the  contrary  or  where            9.04(l)(iii).  defined in Annex  II of this Agreement, defined terms  used in this Agreement shall have the  meanings specified below:                                                                                         Affiliated Lender/Borrower Assignment and Acceptance                                                                                                            acceptance entered into by a Lender and the Borrower or an Affiliated Lender, as applicable, and         ABR                                                         to whether such                         accepted by the Administrative Agent, in the form of Exhibit E or such other form as shall be  Loan,  or  the  Loans  comprising  such  Borrowing,  are  bearing  interest  at  a  rate  determined  by   approved by the Administrative Agent.  reference to the Alternate Base Rate.                                                                                                                    Agent Fee Letter        Acceptable  Discount                                               Section                          the Borrower and the Administrative Agent.  2.12(c)(iv)(B).                                                                                                                    Agents                                         Article VIII.         Acceptable  Prepayment  Amount Section 2.12(c)(iv)(C).                                                                                           Agreed Security Principles                             Schedule 1.09.          Acceptance Date                                        Section 2.12(c)(iv)(B).                             Aggregate Revolving Credit Exposure                                                                                                            Credit Exposures of the Revolving Credit Lenders at such time.         Acquisition                                               Permitted  Holders                 Purchaser                                                                                          Agreement Currency                                         Section 9.21.                                           6                                                                                                         7  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       All-In Yield                      edness, the yield thereof, whether in the form of                 Authority, (b) any entity established in an EEA Member Country which is a parent of an institution  interest rate, margin, original issue discount, upfront fees, an Adjusted LIBO Rate floor or an            described in clause (a) of this definition, or (c) any financial institution established in an EEA  Alternate Base Rate floor (solely to the extent greater than any then applicable LIBO Rate or the          Member Country which is a subsidiary of an institution described in clause (a) or (b) of this  Alternate Base Rate, as applicable), or other fees paid ratably to all lenders of such indebtedness,       definition and is subject to consolidated supervision with its parent.  in each case, incurred or payable by the Borrower generally to all the lenders of such indebtedness;  provided, that (a) OID and upfront fees shall be equated to interest rate assuming a 4-year life to               Applicable Margin                     (a) in respect of the Initial Term Loans, (i)  maturity  (or,  if  less,  the  stated  life  to  maturity  at  the  time  of  its  incurrence  of  the  applicable with respect to any ABR Loan, 4.50% per annum and (ii) with respect to any Eurodollar Loan,  Indebtedness), (b) -                                                          ent                          5.50% per annum; and (b) in respect of Revolving Credit Loans, (i) with respect to any ABR Loan,  fees, underwriting fees, success fees, ticking fees, consent or amendment fees and any similar fees        2.75%  per  annum  and  (ii)  with  respect  to  any  Eurodollar  Loan,  3.75%  per  annum.   For  the  (regardless of whether shared with, or paid to, in whole or in part, any or all lenders) and any other     avoidance of doubt, (A) the Applicable Margin in respect of any Loans under any Extended Class  fees not paid ratably to all lenders of such indebtedness and (c) if any such indebtedness includes        shall be the applicable percentages per annum set forth in the relevant Extension Amendment, or  an Adjusted LIBO Rate or Alternate Base Rate floor that is greater than the Adjusted LIBO Rate             other documentation establishing such Extended Class, (B) the Applicable Margin in respect of  or Alternate Base Rate floor then applicable to any Term Loans, such differential between interest         any Class of  Incremental  Loans shall be the applicable percentages per annum  set forth in the  rate floors shall be included in the calculation of the All-In Yield, but only to the extent an increase   Incremental  Loan  Assumption  Agreement  or  other  documentation  establishing  such  Class  of  in the Adjusted LIBO Rate or Alternate Base Rate floor applicable to the Term Loans would cause            Incremental Loans, and (C) the Applicable Margin in respect of any Class of Refinancing Loans  an increase in the interest rate then in effect thereunder.                                                shall be the applicable percentages per annum set forth in the relevant Refinancing Amendment or                                                                                                             other documentation establishing such Class of Refinancing Loans.         Alternate Base Rate (a) the rate recently announced by the Administrative Agent at its principal office as its Prime                  Applicable Revolving Commitment Fee Percentage Rate, which is not necessarily the lowest rate made available by the Administrative Agent, (b) the         Initial Funding Date until the date a compliance certificate is delivered pursuant to Section 4.10 in  Federal Funds Effective Rate in effect on such day plus 1/2 of 1.00% and (c) the Adjusted LIBO             Annex  I  calculating  the  Consolidated  Net  Senior  Secured  Leverage  Ratio  for  the  Test  Period  Rate for a one-month Interest Period on such day (or if such day is not a Business Day, the                ending as of the last day of the first full fiscal quarter following the Closing Date, a percentage,  immediately preceding Business Day) plus 1.00%; provided that, for the avoidance of doubt, the             per annum equal to 0.50%, and thereafter a rate determined by reference to the Consolidated Net  Adjusted  LIBO  Rate  for  any  day  shall  be  based  on  the  rate  determined  on  such  day  at        Senior Secured Leverage Ratio in effect from time to time as set forth below:  approximately 11:00 a.m. (London time) by reference to the ICE Benchmark Administration LIBO  Rate (or the successor thereto if the ICE Benchmark Administration is no longer making a LIBO                     Level      Consolidated Net Senior Secured Applicable Revolving Commitment  Rate available) for deposits in dollars (as set forth by any commercially available source providing                                 Leverage Ratio                  Fee Percentage  quotations of LIBO Rate selected by the Administrative Agent).  The Prime Rate announced by  the Administrative Agent is evidenced by the recording thereof after its announcement in such                     I                                                     0.500%  internal publication as the Administrative Agent may designate.  Any change in the interest rate                                                                                                                    II                  < 3.50:1.00                       0.375%  resulting from a change in the Prime Rate announced by the Administrative Agent shall become  effective without prior notice to the Borrower as of 12:01 a.m. (New York City time) on the                      When  calculating the  Consolidated  Net  Senior  Secured  Ratio  for the  purposes of this  Business Day on which each change in the Prime Rate is announced by the Administrative Agent.   The Administrative Agent may make commercial or other loans to others at rates of interest at,             that occurred subsequent to the end of the applicable Test Period shall not be given pro forma  above  or  below  the  Prime  Rate.   If  the  Administrative  Agent  shall  have  determined  (which      effect.  No change in the Applicable Revolving Commitment Fee Percentage shall be effective  determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal        until three Business Days after the date on which Administrative Agent shall have received the  Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent        applicable financial statements and the Compliance Certificate pursuant to Section 4.10 in Annex  to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate      I calculating the Consolidated Net Senior Secured Leverage Ratio.  Furthermore no change in the  Base Rate shall be determined without regard to clause (b) of the preceding sentence until the             Applicable Revolving Commitment Fee Percentage to Level II shall be effective if at the time of  circumstances giving rise to such inability no longer exist.                                               the proposed change an Event of Default has occurred and is continuing.  At any time the Borrower                                                                                                             has not submitted to Administrative Agent the applicable financial statements and the Compliance         Applicable  Discount                                               Section                                                                                                             Certificate  as  and  when  required  under  Section  4.10  in  Annex  I,  the  Applicable  Revolving  2.12(c)(iii)(B).                                                                                                             Commitment Fee Percentage shall be set at the percentage in the appropriate column for Level I         Applicable Financial Institution mean (a) any credit institution or investment firm                 in the table above as of the third Business Day after the date such information was required to be  established in any EEA Member Country which is subject to the supervision of any Resolution                delivered until  the date on  which such  information  is  delivered (on  which date  the  Applicable                                                                                                             Revolving Commitment Fee Percentage shall be set at the percentage based upon the Consolidated                                          8                                                                                                         9  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






Net Senior Secured Leverage Ratio disclosed by such information).  Within five Business Days of                   Audited  Financial  Statements                                          ,  receipt of the applicable financial statements and the Compliance Certificate under Section 4.10           consolidated  statements  of  income,  consolidated  statements  of  comprehensive  income,  in Annex I, Administrative Agent shall give the Borrower and each Revolving Credit Lender, fax,  electronic  mail  or  telephonic  notice  (confirmed  in  writing)  of  the  Applicable  Revolving         flows of Target for fiscal years ended December 31, 2016, December 31, 2017 and December 31,  Commitment Fee Percentage in effect from such date.  In the event that the Compliance Certificate          2018 as filed on Form 10-K with the Securities and Exchange Commission.  delivered pursuant to Section 4.10 in Annex I is shown to be inaccurate (at a time when this  Agreement is in effect and unpaid Obligations under this Agreement are outstanding (other than                    Auto-Extension Letter of Credit                                    Section  indemnities and other contingent obligations not yet due and payable)), and such inaccuracy, if            2.26(b)(iii).  corrected, would have led to the application of a higher Applicable Revolving Commitment Fee                            Applicable Commitment Period                                                            Available Currency                  Commitment Fee Percentage applied for such Applicable Commitment Period, then (a) Borrower  shall immediately deliver to Administrative Agent a correct Compliance Certificate required by                    Bail-In Action                           -Down and Conversion Powers by the  Section 4.10 in Annex I for such Applicable Commitment Period, (b) the Applicable Revolving                applicable Resolution Authority in respect of any liability of an Applicable Financial Institution.  Commitment Fee Percentage for such Applicable Commitment Period shall be determined based                                                                                                                    Bail-In Legislation     (a) with respect to any EEA Member Country which has  on  the  corrected  Compliance  Certificate  for  that  Applicable  Commitment  Period  and  (c)  the                                                                                                             implemented or implements Article 55 BRRD, the implementing law or regulation for such EEA  Borrower shall immediately pay to Administrative Agent the accrued additional interest owing as                                                                                                             Member Country from time to time which is described in the EU Bail-In Legislation Schedule,  a result of such increased Applicable Revolving Commitment Fee Percentage for such Applicable                                                                                                             (b) in relation to the United Kingdom (if a Withdrawal Event is effected by the United Kingdom)  Commitment Period.  Notwithstanding the foregoing, so long as an Event of Default described in                                                                                                             Part I of the UK Banking Act 2009 and any other law or regulation applicable in the United  Section 7.01(g) has not occurred with respect to the Borrower, such shortfall shall be due and                                                                                                             Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial  payable within five (5) Business Days following the written demand therefor by the Administrative                                                                                                             institutions  or  their  affiliates  (otherwise  than  through  liquidation,  administration  or  other  Agent and, so long as the Compliance Certificate reflecting such inaccuracy was prepared by the                                                                                                             insolvency proceedings), and (c) in relation to any other state, any analogous law or regulation  Borrower in good faith, no Default or Event of Default shall be deemed to have occurred as a result                                                                                                             from time to time which requires contractual recognition of any Write-Down and Conversion  of such non-payment (and no such shortfall amount shall be deemed overdue or accrue interest at                                                                                                             Powers contained in that law or regulation.  the rate calculated pursuant to Section 2.07) unless such shortfall amount is not paid on or prior to  the fifth Business Day of such five (5) Business Day period.                                                      Bank Meeting Date                                     Appropriate Lender                    (a) with respect to Loans of any Class, the                          Bank Rate                                       r of (a) Federal Funds Effective  Lenders of such Class of Loans, (b) with respect to Letters of Credit, (i) the relevant L/C Issuers        Rate and (b) a rate reasonably determined by the relevant L/C Issuer in accordance with banking  and (ii) the Revolving Credit Lenders and (c) with respect to Swing Line Loans, (i) the Swing Line         industry rules on interbank compensation.  Lenders  and  (ii)  if  any  Swing  Line  Loans  are  outstanding  pursuant  to  Section  2.27(a),  the  Revolving Credit Lenders.                                                                                         Bankruptcy Code                                  ruptcy Code of 1978.          Arranger Fee Letter                                                                                        Bankruptcy Law           (a) the Bankruptcy Code of the United States and (b) any  among Merger Sub, Bidfair USA LLC, BNP, BNP Securities and GS Bank, as may be amended                      other law of the United States, United Kingdom, (or, in each case, any political subdivision thereof)  prior to the date hereof.                                                                                  or any other jurisdiction or any political subdivision thereof relating to bankruptcy, insolvency,                                                                                                             receivership, winding-up, liquidation, reorganization or relief of debtors or any amendment to,         Article 55 BRRD                       tive 2014/59/EU establishing a framework                      succession to or change in any such law (including but not limited to, the UK Insolvency Act 1986  for the recovery and resolution of credit institutions and investment firms.                               and the UK Enterprise Act 2002).          Assignment and Acceptance                                                                                  Beneficial Ownership Regulation                            a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in the form of  Exhibit B or such other form as shall be approved by the Administrative Agent.                                    Benefit Plan           (a)                                                                                                             subject to Title I of ERISA, (b)         Auction Manager            (a) the Administrative Agent or any of its Affiliates or                 (c)  any  Person  whose  assets  include  (for  purposes  of  ERISA  Section  3(42)  or  otherwise  for  (b) any  other  financial  institution  or  advisor  agreed  by  Borrower  and  Administrative  Agent      purposes of Title I of ERISA or Section 4975 of the Code) the assets of any  (whether or not an affiliate of the Administrative Agent) to act as an arranger in connection with                        any repurchases pursuant to Section 2.12(c) or Section 9.04(k).                                         10                                                                                                         11  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       BHC Act Affiliate                                        Section 9.23(b).                                  Breakage Event                                        Section 2.16.          BNP                                such term in the introductory statement to this                         Business Day           (a) any day other than a Saturday, Sunday or other day on  Agreement.                                                                                                 which commercial banks in New York City are authorized or required by law to close and, (b) if                                                                                                             the applicable Business Day relates to notices, determinations, fundings or payments in connection         BNP Securities                                                                                      with the LIBO Rate or any Eurodollar Loans, any day which is a Business Day described in                                                                                                             clause (a) and which is also a day on which dealings in Dollar deposits are also carried on the         Board                                                                                               London interbank market.  States of America.                                                                                                                    Captive Insurance Affiliate        Borrower                cases, the Administrative Borrower; provided that, after the                purpose of, and to be engaged solely in the business of, insuring the businesses or facilities owned  appointment  of  the  Subsidiary  Revolver  Borrower  as  the  Subsidiary  Revolver  Borrower  in          or operated by Borrower or any of its Subsidiaries or Affiliates or joint ventures or to insure related  accordance with Section 1.10 hereof, and so long as such Subsidiary Revolver Borrower has not              or unrelated businesses.  resigned in accordance with Section 1.10(e) hereof, Borrower shall refer to the Administrative  Borrower and/or the Subsidiary Revolver Borrower, as the context may require, provided that,                      Cash Collateral                                       Section 2.26(g).  unless otherwise specified, solely with respect to the Term  Facility and for all purposes under  Annex I and Annex II, Borrower shall refer to the Administrative Borrower only.                                   Cash Collateralize                                       Section 2.26(g).          Borrower Group                                                                                             CERCLA                                                                                                            Liability Act, 42 U.S.C. § 9601 et seq.         Borrower Materials                                        Section 9.01.                                                                                                                    CERCLIS        Borrower Merger  shall mean the merger of Merger Sub with and into Target, with Target              Liability Information System maintained by the United States Environmental Protection Agency.  being the surviving corporation of the Borrower Merger.                                                                                                                    Change in Law        Borrower Offer of Specified Discount Prepayment                                                     the following:  (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change  to  make  a  voluntary  prepayment  of  Loans  at  a  Specified  Discount  to  par  pursuant  to  Section  in any law, rule, regulation or treaty or in the administration, interpretation or application thereof  2.12(c)(ii).                                                                                               by any Governmental Authority or (c) the making or issuance of any request, guideline or directive                                                                                                             (whether or not having the force of law) by any Governmental Authority.  For purposes of this         Borrower Solicitation of Discount Range Prepayment Offers                                           definition,  the  Dodd-Frank  Wall  Street  Reform  and  Consumer  Protection  Act  and  all  rules,                                      Discount  Range  Prepayment  Offers                                    regulations, orders, requests, guidelines or directives thereunder or in connection therewith and all  corresponding acceptance by a Lender of, a voluntary prepayment of Loans at a specified range of           requests, rules,  guidelines or directives concerning capital  discounts to par pursuant to Section 2.12(c)(iii).                                                         promulgated either by the Bank for International Settlements, the Basel Committee on Banking                                                                                                             Supervision (or any successor or similar authority) or by the United States or foreign regulatory         Borrower Solicitation of Discounted Prepayment Offers                                               authorities pursuant thereto, are deemed to have been adopted and gone into effect after the date  the  Borrow                      Solicited  Discounted  Prepayment  Offers                                 of this Agreement.  subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Loans at a discount to  par pursuant to Section 2.12(c)(iv).                                                                              Change of Control Tender                                                                                                            Target Group by consummating, in connection with the Acquisition, an offer to purchase all of the         Borrowing                                                                                           Existing Target Notes from the holders thereof in accordance with the applicable provisions of the  Term Borrowing, as the context may require.                                                                indenture governing the Existing Target Notes.          Borrowing Request                                                     rms                                  Change of Control Tender Settlement Date of Article II in relation to (a) a Revolving Credit Borrowing, substantially in the form set out in        Control Tender is settled.  Exhibit C-1, (b) a Swing Line Borrowing, substantially in the form set out in Exhibit C-2 or (c) a  Term Borrowing, substantially in the form set out in Exhibit C-3, or in each case, such other form                Charges                                         Section 9.09.  as shall be approved by the Administrative Agent.                                          12                                                                                                         13  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       Class          (a) with respect to Commitments or Loans, those of such Commitments                         Commitment Termination Date                               (a) the date of the  or Loans that have the same terms and conditions (without regard to differences in the Type of             consummation of the Acquisition (with or without the use of any Loans or Senior Secured Notes);  Loan, Interest Period, upfront fees, OID or similar fees paid or payable in connection with such           provided that if the Acquisition is consummated with the utilization of Loans or Senior Secured  Commitments or Loans, or differences in                                                                    Notes, this clause (a) will not terminate the undrawn Commitments under the Initial Term Loan  Commitments or Loans may be designated in writing by the Borrower and Lenders holding such                 Commitments available to be drawn on the Delayed Draw Funding Date or the Revolving Credit  Commitments or Loans as a separate Class from other Commitments or Loans that have the same                Facilities, (b) the valid termination of the Acquisition Agreement in accordance with its terms,  terms  and  conditions  and  (b)  with  respect  to  Lenders,  those  of  such  Lenders  that  have        (c) with respect to the entire aggregate amount of any undrawn Commitments under the Initial  Commitments or Loans of a particular Class.  Once funded, the Delayed Draw Term Loans and                  Term Loan Commitments after the Closing Date, the date that is the earlier of (i) 45 days after the  the Initial Draw Term Loans shall constitute a single Class of Term Loans having identical terms           Closing  Date  and  (ii)  the  Change  of  Control  Tender  Settlement  Date  (such  earlier  date,  the  as set forth herein.                                                                                        Delayed Draw Termination Date     (d) the Longstop Date (if the Acquisition shall not have                                                                                                             been consummated by such date); provided that if earlier (and solely with respect to the Initial         Closing  Date                                                                                       Term Loan Commitments in excess of the amount available to be drawn on the Delayed Draw  accordance with the terms of the Acquisition Agreement.                                                    Funding Date), the Initial Funding Date shall be deemed  to be the Commitment Termination Date.          Closing  Date  Intercreditor  Agreement    mean  the  intercreditor  agreement                             Committed  Lender substantially in the form of Exhibit D hereto, dated as of the Closing Date, among, inter alios,           Commitment Letter.   Deutsche Bank Trust Company Americas, as Collateral Agent and Authorized Representative for  the Initial Additional Secured Parties referred to therein, and the Collateral Agent, as Collateral               Communications                                         Section 9.01.  Agent and the Administrative Agent as Authorized Representative, in each case for the Credit  Agreement Secured Parties referred to therein (in each case as such terms are defined therein).                   Compliance Date                                                                                                            full fiscal quarter of the Borrower ending after the Closing Date) if on such day the Compliance         Closing  Date  Intercreditor  Agreement  Supplement                                                 Date Condition is met.  substantially in the form of Annex I to the Closing Date Intercreditor Agreement, or in another  form reasonably satisfactory to the Administrative Agent and the Borrower, pursuant to which a                    Compliance Date Condition Grantor becomes a party to, and bound by, the terms of the Closing Date Intercreditor Agreement.           Exposure  is  an  aggregate  principal  amount  equal  to  or  exceeding  35%  of  the  amount  of  the                                                                                                             aggregate outstanding Revolving Credit Commitments excluding, for purposes of calculating such         Closing Date Revolving Available Amount  shall mean $160,000,000.                                   Aggregate Revolving Credit Exposure, any L/C Obligations (a) in respect of Cash Collateralized                                                                                                             Letters of Credit and (b) in respect of undrawn Letters of Credit, in an aggregate amount not          Code                                                                                               exceeding the Letter of Credit Sublimit.  and rulings issued thereunder (unless otherwise provided herein).                                                                                                                    Consolidated        Collateral                                                                                          of a Person, the application or preparation of such term, test, statement or report (as applicable)                                                                                                             based upon the consolidation, in accordance with GAAP, of the financial condition or operating  any similar or equivalent term used or referred to in any applicable Security Document) and all            results of such Person and its Subsidiaries.  other property that is or is intended under the terms of the Security Documents to be subject to  Liens in favor of the Administrative Agent or the Collateral Agent.                                               Contract Consideration                                             (b)(xii)                                                                                                                                                       Collateral  Agent                    assigned  to  such  term  in  the  introductory  statement to this Agreement.                                                                                      Control                                                                                                            the direction of the management or policies of a Person, whether through the ability to exercise          Commitment                                                                                         voting powe the context may require.                                                                                   meanings correlative thereto.          Commitment Letter                                  dated as of September 11,                               Covered Entity                                        Section 9.23(b).  2019, among Merger Sub, Bidfair USA LLC, BNP, BNP Securities and GS Bank.                                                                                                                    Covered Jurisdiction                                                                                                            Agreement.                                           14                                                                                                         15  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       Credit Extension                              (a) a Borrowing and (b) an L/C                               Default Right                                      in Section 9.23(b).  Credit Extension.                                                                                                                    Defaulting Lender                  Section 2.25(b), any Lender that, as reasonably         CRD IV        (a) Regulation (EU) No 575/2013 of the European Parliament and of the                 determined by the Administrative Agent (a) has refused (which refusal may be given verbally or  Council of 26 June 2013 on prudential requirements for credit institutions and investment firms;           in writing and has not been retracted) or failed to perform any of its funding obligations hereunder,  and (b) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on              including in respect of its Loans or participations in respect of L/C Obligations or Swing Line  access to the activity of credit institutions and the prudential supervision of credit institutions and    Loans, which refusal or failure is not cured within one Business Day after the date of such refusal  investment  firms,  amending  Directive  2002/87/EC  and  repealing  Directives  2006/48/EC  and           or failure, (b) has notified the Borrower or Administrative Agent that it does not intend to comply  2006/49/EC.                                                                                                with its funding obligations or has made a public statement to that effect with respect to its funding                                                                                                             obligations  hereunder,  (c)  has  failed,  within  three  Business  Days  after  request  by  the         Cure Amount                                          Section 7.03(a).                               Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will                                                                                                             comply with its funding obligations, or (d) has, or has a direct or indirect parent company that has,         Cure Expiration Date                                   rm in Section 7.03(a).                       after the date of this Agreement, (i) become the subject of a proceeding under any Bankruptcy                                                                                                             Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or         Current Assets     mean, with respect to the Borrower and the Restricted Subsidiaries               similar Person charged with reorganization or liquidation of its business or a custodian appointed  on a Consolidated basis, at any date of determination, all assets (other than cash, Cash Equivalents       for  it,  or  (iii)  taken  any  action  in  furtherance  of,  or  indicated its  consent  to,  approval  of  or  and Permitted Investments) that would, in accordance with GAAP, be classified on a consolidated            acquiescence  in  any  such  proceeding  or  appointment;  provided  that  a  Lender  shall  not  be  a                                                                                                             Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that  at such date of determination, other than amounts related to current or deferred Taxes based on            Lender or any direct or indirect parent company thereof by a Governmental Authority.  income, profits or capital gains, assets held for sale, loans (permitted) to third parties, pension  assets,  deferred  bank  fees  and  derivative  financial  instruments,  and  excluding  the  effects  of         Delayed Draw Funding Date adjustments pursuant to GAAP resulting from the application  of recapitalization accounting or             forth in Section 4.04 have been satisfied and the Delayed Draw Term Loans are funded.  purchase accounting, as the case may be, in relation to the Acquisition or any  consummated  acquisition or Investment.                                                                                        Delayed Draw Term Loans                                            Section                                                                                                             2.01(a).         Current  Liabilities shall  mean,  with  respect  to  the  Borrower  and  the  Restricted  Subsidiaries on a consolidated basis, at any date of determination, all liabilities that would, in                Delayed Draw Termination Date accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and the                definition of Commitment Termination Date.  Restr of short-term deferred revenue of the Borrower and its Restricted Subsidiaries in accordance with                 Discount Prepayment Accepting Term Lender GAAP), other than (a) the current portion of any long term Indebtedness and derivative financial           term in Section 2.12(c)(ii)(B).  instruments, (b) the current portion of accrued interest, (c) liabilities relating to current or deferred  Taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring                  Discount Range                                        Section 2.12(c)(iii)(A).  reserves, severance, (e) any liabilities in respect of revolving loans, swing line loans or letter of  credit obligations under any revolving credit facility (including Revolving Credit Loans), (f) the                Discount Range Prepayment Amount current portion of any Capitalized Lease Obligation, (g) the current portion of any other long-term        Section 2.12(c)(iii)(A).  liabilities, (h) liabilities in respect of unpaid earn-outs, (i) amounts related to derivative financial  instruments and assets held for sale, and (j) any deferred management, monitoring, consulting,                    Discount Range Prepayment Offers advisory and other fees payable to any Investor,  and excluding the effects of adjustments pursuant        definition of Borrower Solicitation of Discount Range Prepayment Offers.  to GAAP resulting from the application of recapitalization accounting or purchase accounting, as                                                                                                                    Discount Range Prepayment Response Date the case may be, in relation to the Acquisition or any consummated acquisition or Investment.                                                                                                             term in Section 2.12(c)(iii)(A).         Declined Proceeds                                        Section 2.13(g).                                                                                                                    Discount  Range  Proration                                         Section         Default                                                                                             2.12(c)(iii)(C).  or both would be, an Event of Default.                                          16                                                                                                         17  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       Discounted Prepayment Determination Date                                                            information and lender meetings, (2) be entitled to any expense reimbursement or indemnification  term in Section 2.12(c)(iv)(C).                                                                            under the  Loan  Documents,  and nothing  in  the  Loan  Documents  shall  restrict  the  rights  and                                                                                                             remedies of the Loan Parties against such Disqualified Person, (3) receive any other information         Discounted Prepayment Effective Date                                                                or reporting provided by the Borrower, the Administrative Agent or any other Lender, (4) attend  Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer or                 or participate in meetings attended by the Lenders and the Administrative Agent or (5) be entitled  Borrower  Solicitation  of  Discounted  Prepayment  Offer,  five  (5)  Business  Days  following  the      to access any electronic site established for Lenders or confidential communications from counsel  Specified Discount Prepayment Response Date, the Discount Range Prepayment Response Date                   to or financial advisors of the Administrative Agent or the Lenders.  or the Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section  2.12(c)(ii)(A),  Section  2.12(c)(iii)(A)  or  Section  2.12(c)(iv)(A),  respectively,  unless  a  shorter        Dollars  dollars   $                                                   period is agreed to between the Borrower and the Auction Manager.                                                                                                                    EEA Member Country                                                   and,         Discounted Term Loan Prepayment                                                                     United Kingdom, Liechtenstein and Norway.  Section 2.12(c)(i).                                                                                                                    Effective Date                                                     Section         Disqualified Person         (a) any Person, other than a Loan Party, who has been                   4.01 have been satisfied, which date is October 2, 2019.  identified to the Administrative Agent in writing on or prior to the Bank Meeting Date and posted                                   -                                                                                Eligible Assignee confidentiality provisions thereof in accordance with Section 9.01 or otherwise made available to          Lender that is (a) a Lender, an Affiliate of any Lender or a Related Fund (any two or more Related                DQ List                                                                                      Funds being treated as a single Eligible Assignee for all purposes hereof) or (b) a commercial bank,  on the basis of the similarity of its name to any Person set forth on the DQ List (other than its  financial investors and affiliated bona fide diversified debt funds that are not operating companies       defined in Regulation D) and which extends credit or buys loans in the ordinary course; provided  or affiliates of operating companies) and/or (b) any Person, other than a Loan Party, who directly  provides products or services that are the same or substantially similar to the products or services       Person that is a Loan Party (other than the Borrower to the extent provided in Section 9.04(k)),  provided by, and that constitute a material part of the business of, the Loan Parties taken as a                                                                                     Section  whole, and any Affiliate of any such Person (other than its financial investors and affiliated bona        9.04(l)), any Subsidiaries or any Disqualified Person.  fide diversified debt funds that are not operating companies or affiliates of operating companies),  who has been identified to the Administrative Agent in writing from time to time and posted to                    Environmental Laws                                 -                                                                          national, regional, local  and other laws, rules, regulations, decisions and orders, in each  case  confidentiality provisions thereof in accordance with Section 9.01 or otherwise made available to          applicable to and legally binding on such Person, relating to the protection of human health and  all Lenders (and potential Lenders, subject to such confidentiality provisions) and, in the case of        safety  as  related  to  hazardous  materials  exposure,  the  environment  or  hazardous  or  toxic  Persons and Affiliates of any Person (other than its financial investors and affiliated bona fide          substances or wastes, pollutants or contaminants.  diversified  debt  funds  that  are  not  operating  companies  or  affiliates  of  operating  companies)  identified to the Administrative Agent on or after the Bank Meeting Date, to the extent reasonably                Environmental Liability acceptable to the Administrative Agent.  Notwithstanding anything to the contrary herein, in no            suit, judgment, order, fine, penalty, fee, expense, or cost, contingent or otherwise (including any  event shall the designation of a Person as a Disqualified Person apply (i) to disqualify any Person        liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the  until  three  (3)  Business  Days  after  such  Person  shall  have  been  identified  in  writing  to  the Borrower, or any other Loan Party resulting from or based upon (a) violation of any Environmental  Administrative     Agent      via      electronic     mail      submitted      to                          Law, (b) the generation, use, handling, transportation, labeling, storage, treatment, disposal or  DL_MO_Agency_Services@us.bnpparibas.com  (or  such  other  address  as  the  Administrative                recycling of, or presence of any Hazardous Materials, (c) exposure to any Hazardous Materials,  Agent may designate to the Borrower from time to tim Designation Effective Date                            (d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any  (ii)  retroactively  to  disqualify any  Person  that,  before  the  Designation  Effective  Date,  has  (A) contract, agreement or other consensual arrangement pursuant to which liability is assumed or  acquired an assignment or participation interest under this Agreement or (B) entered into a trade          imposed with respect to any of the foregoing.  to acquire an assignment or participation interest under this Agreement.                                                                                                                    Environmental Permits       If a Disqualified Person becomes a Lender hereunder in violation of the provisions of this           any Environmental Law for the operation of the business of any  Loan Party or its Restricted                                                     Disqualified Person shall not (1) be                    Subsidiaries conducted on or from the properties owned or used by any Loan Party or its Restricted  entitled to any of the rights or privileges enjoyed by the other Lenders with respect to voting,           Subsidiaries.                                          18                                                                                                         19  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






        ERISA           the Employee Retirement Income Security Act of 1974, and the rules                 the  end  of  such  period)  and  (iii)  expenses  reducing  (or  excluded  from)  the  calculation  of  and regulations promulgated thereunder.                                                                    Consolidated Net Income for such period with respect to amounts deducted in any prior calculation                                                                                                             of Excess Cash Flow pursuant to clause (b)(iii), (vi), (vii) and (ix) below, and minus:         ERISA Affiliate          any trade or business (whether or not incorporated) that,  together with a Borrower, is treated as a single employer under Section 414(b) or (c) of the Code                (b)   the sum, without duplication including with respect to amounts already reducing  or Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412               Consolidated Net Income and not added back to Consolidated EBITDA, of:  of the Code, is treated as a single employer under Section 414 of the Code.                                                                                                                         (i)   the  amount  of  any  Taxes  payable  or  tax  reserves  set  aside  or  payable         ERISA  Event            (a)                                                                               (without duplication) in cash by the Borrower (or any direct or indirect parent thereof) with  ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which                respect to the Borrower and the Restricted Subsidiaries with respect to such period;  the 30-day notice period is waived); (b)  defined in Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA), whether or not                            (ii)  Consolidated Interest Expense for such period paid in cash;  waived or the failure to make by its due date a required installment under Section 430(j) of the  Code; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an                           (iii) to the extent not deducted in a prior period pursuant to clause (b)(vii) below,  application  for  a  waiver  of  the  minimum  funding  standard  with  respect  to  any  Plan;  (d)  the        capital expenditures made in cash during such period to the extent financed with Internally  incurrence by any Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with                  Generated Cash;  respect to the termination of any Plan; (e) the receipt by any Borrower or any ERISA Affiliate  from the PBGC or a plan administrator of any notice of an intention to terminate any Plan or Plans                     (iv)  (A) all scheduled principal payments and repayments of Indebtedness and  or to appoint a trustee to administer any Plan; (f) the incurrence by any Borrower or any ERISA                  the principal component of payments in respect of Capitalized Lease Obligations (other  Affiliate of any liability with respect to the withdrawal or partial withdrawal of any Borrower or               than Revolving Credit Loans if such scheduled payment and repayment does not occur at  any ERISA Affiliate from any Plan or Multiemployer Plan; (g) the receipt by any Borrower or any                  the final maturity thereof concurrently with the permanent termination of all commitments  ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Borrower or                     in  respect  thereof),  (B)  all  voluntary  prepayments  of  Indebtedness  and  the  principal  any ERISA Affiliate of any notice, of the imposition upon any Borrower or any ERISA Affiliate                    component of payments in respect of Capitalized Lease Obligations (other than Pari Passu  of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, (i) in            Indebtedness) made in cash by the Borrower and the Restricted Subsidiaries during such                                                 of  the  Code  or  Section 305  of  ERISA,                        period,  but  only  to  the  extent  that  the  Indebtedness  so  repaid  by  its  terms  cannot  be  (ii) insolvent within the meaning of Title IV of ERISA; (h) the imposition of a lien pursuant to                 reborrowed or redrawn and such repayments do not occur in connection with a refinancing  Section 430(k) of the Code  or Section 303(k) or Section 4068 of the ERISA on any ERISA                          of all or any portion of such Indebtedness, (C) the amount of a mandatory prepayment of  Affiliate with respect to any Multiemployer Plan; (i) a violation of Section 436 of the Code, or (j)             Term Loans pursuant to Section 2.13(a) and any mandatory prepayment, repayment or                                                                                                                   redemption  of  Pari Passu  Indebtedness  pursuant  to requirements  under the agreements  the Code or Section 303 of ERISA).                                                                               governing such Pari Passu Indebtedness similar to the requirements set forth in Section                                                                                                                   2.13(a), to the extent required due to an Asset Disposition (or any disposition specifically         EU Bail-In Legislation Schedule              -In Legislation Schedule published  by the Loan Market Association (or any successor person), as in effect from time to time.                        to Consolidated EBITDA and not in excess of the amount of such increase, and (D) the                                                                                                                   aggregate  amount  of  any  premium,  make-whole,  penalty  payments  or  the  principal         Eurodollar                                                    ed in dollars,                              component of payments in respect of Capitalized Lease Obligations actually paid in cash  shall refer to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at                by the Borrower and its Restricted Subsidiaries during such period that are required to be  a rate determined by reference to the Adjusted LIBO Rate.                                                        made in connection with any such prepayment of Indebtedness;          Events of Default                                        Section 7.01 of this                                   (v)   additions to noncash working capital for such period (i.e., the increase, if  Agreement.                                                                                                       any, in Current Assets minus Current Liabilities from the beginning to the end of such                                                                                                                   period),         Excess Cash Flow the first full fiscal year elapsed after the Closing Date):                                                            (vi)  to the extent not deducted in a prior period pursuant to clause (b)(vii) below,                                                                                                                   the amount of any cash expense, charge or other cost during such period related to any        (a)    the  sum,  without  duplication,  of  (i)  Consolidated  EBITDA  for  such  period,                 Equity Offering, Investment, acquisition, disposition, recapitalization, Incurrence of any  (ii) reductions to noncash working capital of the Borrower and its Restricted Subsidiaries for such              Indebtedness,  amendment  or  modification  of  any  debt  instrument  (including  any  period (i.e., the decrease, if any, in Current Assets minus Current Liabilities from the beginning to            amendment or other modification of this Agreement and/or the other Loan Documents) or                                         20                                                                                                         21  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






      similar transaction permitted by this Agreement (whether or not successful) (including any                 in  clause  (xi)  above),  acquisitions  of  intellectual  property,  any  scheduled  payment,        such fees, expenses or charges related to the Transactions) and any cash charges or non-                   repurchase  or  redemption  of  Indebtedness  (described  in  clause  (iv)  above)  that  was        recurring merger costs incurred during such period as a result of any such transaction, in                 permitted by the terms of this Agreement to be incurred and paid, repurchased or redeemed        each case as determined in good faith by the Borrower to the extent financed with Internally                            Permitted  Expenditures       Generated Cash;                                                                                            consummated or made, as applicable, during the period of four consecutive fiscal quarters                                                                                                                   of the Borrower following the end of such period, and expected in good faith to be financed               (vii) to the extent not deducted in a prior period pursuant to this clause (b)(vii),                with Internally Generated Cash; provided that to the extent that the aggregate amount of        the aggregate amount of expenditures actually made by the Borrower and its Restricted                      Permitted Expenditures financed with Internally Generated Cash and paid in cash during        Subsidiaries during such period, or at the option of the Borrower, after the end of such                   such following period of four consecutive fiscal quarters is less than the aggregate amount        period and prior to the date upon which a mandatory prepayment for such period would be                    of  Planned  Expenditures  expected  to  be  financed  with  Internally  Generated  Cash,  the        required under Section 2.13(b), in each case, from Internally Generated Cash (including                    amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end        expenditures for the payment of financing fees) to the extent that such expenditures are not               of such following period of four consecutive fiscal quarters; and        expensed  during  such  period,  are  not  deducted  (or  were  excluded)  in  calculating        Consolidated Net Income or were added back in calculating Consolidated EBITDA;                                   (xiii) cash expenditures in respect of Hedging Obligations during such period to                                                                                                                   the extent not deducted (or were excluded) in arriving at Consolidated Net Income or added               (viii) an  amount  equal  to  (A)  the  amount  of  all  non-cash  credits  included  in            back to Consolidated EBITDA, to the extent financed with Internally Generated Cash.        arriving  at  Consolidated  Net  Income  (but  excluding  any  non-cash  credit  to  the  extent        representing the reversal of an accrual or reserve for potential cash items in any future                  Notwithstanding anything else provided in this Agreement, (x) the amounts deducted under        period) and (B) cash charges, losses or expenses excluded in arriving at Consolidated Net            clause (b) above shall in no event be duplicative of amounts deducted under clause (y) of the first        Income or added back in calculating Consolidated EBITDA;                                             proviso of Section 2.13(b) and (y) to the extent an amount is eligible to be deducted under either                                                                                                             clause (b) above or clause (y) of the first proviso of Section 2.13(b), such amounts shall be deemed               (ix)  without  duplication  of  any  amount  included  in  clause  (iv)  above,  cash         to have been deducted under clause (y) of the first proviso of Section 2.13(b) (and not, for the        payments by the Borrower and its Restricted Subsidiaries during such period in respect of            avoidance of doubt, clause (b) above).        long-term  liabilities  (including  pension  and  other  post-retirement  obligations)  of  the        Borrower  and  its  Restricted  Subsidiaries  (other  than  Indebtedness)  to  the  extent  such            Excluded Accounts                 (a) payroll accounts, (b) zero balance accounts,        payments are not expensed during such period or are not deducted (or were excluded) in               (c) any withholding tax, benefits, escrow, trust, customs or any other fiduciary account and (d) any        calculating Consolidated Net Income and financed with Internally Generated Cash;                     account having a balance that does not exceed $2,500,000 for more than three (3) consecutive                                                                                                             Business Days at any time.               (x)   to  the  extent  added  back  to  Consolidated  EBITDA,  the  amount  of        management, monitoring, consultancy and advisory fees and related expenses paid in such                     Excluded Assets      each of the  following: (a)     -to-       period (or accruals relating to such  fees and related expenses) to any Permitted  Holder            registration of a trademark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051,        (whether directly or indirectly, through any Parent), financed with Internally Generated                                                                                     Act  or  an        Cash;                                                                                                             solely to the extent, if any, that and solely during the period, if any, in which, the grant of a security               (xi)  the amount of any Permitted Investment (other than a Permitted Investment               interest therein would impair the validity or enforceability of any registration that issues from such        made pursuant to clause (c) of the definition thereof) and any Restricted Payment pursuant           intent-to-use  application  under  applicable  federal  law,  (b)  margin  stock,  (c)  assets  subject  to        to Section 4.05 of Article IV in Annex I hereof, in each case, that are made during such             certificates of title (including motor vehicles (other than motor vehicles subject to certificates of        period  by  the  Borrower  or  any  Restricted  Subsidiary  thereof with  Internally  Generated      title, provided that perfection of security interests in such motor vehicles shall be limited to the        Cash;                                                                                                filing of UCC financing statements), aircraft and aircraft engines), (d) letter-of-credit rights (other                                                                                                             than to the extent the security interest in such letter of credit right may be perfected by the filing               (xii) without duplication of amounts deducted from Excess Cash Flow in prior                  of UCC financing statements), (e) commercial tort claims with a value, individually, of less than        periods and, at the option of the Borrower, (A) the aggregate consideration required to be           $2,500,000,  (f)  any  governmental  or  regulatory  licenses,  authorizations,  certificates,  charters,        paid in cash by the Borrower and its Restricted Subsidiaries pursuant to binding contracts           franchises, approvals and consents (whether federal, state or otherwise) to the extent a security             Contract Consideration                                         (B)  any                         interest therein is prohibited or restricted thereby or requires any consent, acknowledgment or        planned  cash  expenditures  by  the  Borrower  or  any  of  its  Restricted  Subsidiaries  (the     authorization from a Governmental Authority not obtained (without any requirement to obtain         Planned Expenditures                                     (A) and (B), relating                      such  consent,  acknowledgment  or  authorization)  after  giving  effect  to  the  applicable  anti-       to acquisitions or other Investments, capital expenditures, Restricted Payments (described                                         22                                                                                                         23  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






assignment provisions of the UCC or other applicable Law other than proceeds and receivables               agree that the cost, burden or difficulty of obtaining such a security interest or perfection thereof  thereof, the assignment of which is expressly deemed effective under the UCC or other applicable           (including  any  material  adverse  tax  consequences  to  Parent  Guarantor,  the  Borrower,  or  any  Law notwithstanding such prohibition, (g) any lease, license or agreement (not otherwise subject           Subsidiary of the Borrower) are excessive in relation to the benefit to the Lenders of the security  to clause (h) below) or any property that is subject to a capital lease, purchase money security           to  be  afforded  thereby;  provided  that  solely with  respect  to  any English  law  floating charge,  interest or similar arrangement, in each case permitted by the Loan Documents, to the extent that          Excluded Assets may, if agreed by the Borrower and the Administrative Agent, exclude fewer  a grant of a security interest therein (x) would violate or invalidate such lease, license or agreement    assets.  Notwithstanding the foregoing, Excluded Assets shall not include any proceeds, products,  or purchase money security interest or similar arrangement or create a right of termination in favor       substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions or  of any other party thereto (other than Parent Guarantor, the Borrower or any of its Subsidiaries)          replacements would otherwise constitute Excluded Assets).  after giving effect to the applicable anti-assignment provisions of the UCC or other applicable Law  (other  than  proceeds  and  receivables  thereof,  the  assignment  of  which  is  expressly  deemed             Excluded Taxes effective under the UCC or other applicable Law notwithstanding such prohibition) to the extent            any other recipient of any payment to be made by or on account of any obligation of the Borrower  such  approval,  consent  or  authorization  is  not  obtained  or  (y)  would  require  governmental  or  hereunder, (a) Taxes imposed on (or measured by) net income (however denominated), franchise  regulatory approval, consent or authorization not obtained (without any requirement to obtain such         Taxes, branch profits Taxes or any similar Tax, (i) by the jurisdiction under the laws of which such  approval, consent or authorization) after giving effect to the applicable anti-assignment provisions       recipient is organized or in which its principal office is located or, in the case of any Lender, in  of the UCC or other applicable Law, other than proceeds and receivables thereof, the assignment            which  its  applicable  lending  office  is  located or  (ii)  that  are  Other  Connection  Taxes,  (b)  any  of which is expressly deemed effective under the UCC or other applicable Law notwithstanding               withholding t                                            Section 2.20(e) or (f); (c) in  such prohibition, (h) assets to the extent the pledge thereof or grant of security interests therein (x)   the case of a Lender, U.S. federal withholding Taxes that are (or would be) required to be withheld  is prohibited or restricted by any applicable Law, rule or regulation or would require any consent,        pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan  approval or authorization of any governmental or regulatory authority not obtained (without any            or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.21)  requirement  to  obtain  such  any  consent,  approval  or  authorization)  after  giving  effect  to  the or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to  applicable anti-assignment provisions of the UCC or other applicable Law (other than proceeds              Section 2.20, amounts with respect to such Taxes were payable either  and receivables thereof, the assignment of which is expressly deemed effective under the UCC or            immediately before such Lender became a party hereto or to such Lender immediately before it  other applicable Law notwithstanding such prohibition), (y) would render such asset invalid or             changed its lending office; (d) U.S. backup withholding Taxes; and (e) any Taxes imposed under  unenforceable under applicable Law (solely with respect to any intellectual property), or (z) is           FATCA.  prohibited by any contract or would require any consent, approval, license or other authorization  of any third party (provided that such requirement existed on the Closing Date or at the time of the              Existing Facilities Refinancing acquisition of such asset, as applicable, and was not incurred in contemplation thereof (other than        other obligations (other than unasserted contingent obligations) (and termination of commitments  in  the  case  of  capital  leases  and  purchase  money  financings))  or  governmental  or  regulatory   thereunder and release of all guarantees, liens and security interests related thereto) of the Target  authority not obtained (without any requirement to obtain such consent, approval, license or other         and certain of its subsidiaries with respect to the Existing Target Credit Agreement and Existing  authorization), other than to the extent such prohibition or restriction is ineffective under the UCC      Target Mortgage Loan Agreement.  or other applicable Law, (i) assets to the extent a security interest in such assets would result in  material  adverse  tax  consequences  to  the  Borrower  or  any  of  its  Subsidiaries  as  reasonably           Existing Target Credit Agreement determined by the Borrower in consultation with the Administrative Agent, (j) any leasehold or             2018 among Target, certain subsidiaries of Target, the lenders party thereto, JPMorgan Chase  freehold interest in any real property (and improvements and fixtures relating thereto), (k) any           Bank N.A., as administrative agent, and the other agents and parties party thereto.  Excluded Account, (l) Capital Stock in Immaterial Subsidiaries and Excluded Subsidiaries (other                                                                                                                    Existing Target Mortgage Loan Agreement than first tier CFCs and first tier CFC Holdcos that are Restricted Subsidiaries; provided that in                                                                                                             dated as of July 1, 2015 between 1334 York, LLC and HSBC Bank USA, National Association  the case of any first tier CFC that is not organized in a Covered Jurisdiction or first tier CFC                                                                                                             and the other lenders and agents named therein.  Holdco, the pledge of the Capital Stock of such Subsidiary shall be limited to no more than 65%  of the total issued and outstanding Capital Stock of such first tier CFC or first tier CFC Holdco;                Existing Target Notes provided, that, for the avoidance of doubt, the pledged Capital Stock of the Guarantors will not be        an indenture dated as of December 12, 2017, entered into among, inter alios, the Target as Issuer,  subject  to  such  limitation),  (m)  in  the  case  of  any  U.S.  Loan  Party,  any  assets  located  in,  or the Initial Subsidiary Guarantors party thereto, and the U.S. Bank National Association as trustee.  governed by, any non-U.S. jurisdiction law or regulation (other than (i) Capital Stock of CFCs that  does not constitute an Excluded Asset pursuant to clause (l) above, (ii) assets that can be perfected             Existing Target Notes Indenture by the filing of a UCC financing statement and (iii) any material intellectual property located in a       entered into among, inter alios, the Target as Issuer, the Initial Subsidiary Guarantors party thereto,  Covered  Jurisdiction),  (n)  any  other  assets  excluded  by  application  of  the  Agreed  Security     and the U.S. Bank National Association as trustee, governing the Existing Target Notes, as may  Principles; and (o) those assets as to which the Administrative Agent and the Borrower reasonably          be amended or supplemented from time to time.                                         24                                                                                                         25  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       Expiring Credit Commitment                                         Section                                 Federal Funds Effective Rate 2.27(g).                                                                                                   on overnight Federal funds transactions with members of the Federal Reserve System arranged by                                                                                                             Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve         Extended Class                                        Section 2.23(a).                              Bank of New York, or, if such rate is not so published for any day that is a Business Day, the                                                                                                             average of the quotations for the day for such transactions received by the Administrative Agent         Extended Revolving Credit Commitments                                                               from three Federal funds brokers of recognized standing selected by it; provided that if the Federal  in Section 2.23(a).                                                                                        Funds Effective Rate is less than zero, it shall be deemed to be zero for the purposes of this                                                                                                             Agreement.         Extended Term Loans                      Section 2.23(a).                                                                                                                    Financial Covenant              aning ascribed to it in Section 6.01.         Extending Lender                                         Section 2.23(b).                                                                                                                    Foreign Lender                                               Extension Amendment                                         Section 2.23(c).                                                                                                                    Foreign Pension Plan         any pension plan, pension undertaking, supplemental         Extension Arranger                                        Section 2.23(a).                          pension, retirement savings or other retirement income plan, obligation or arrangement or any kind                                                                                                             that is not subject to U.S. law and that is established, maintained or contributed to by any Loan         Extension Election                                       Section 2.23(b).                                                                                                             Party or any of its Subsidiaries or Affiliates in respect of which any Loan Party or any of its         Extension Fee                                         Section 2.25(d).                              Subsidiaries or Affiliates has any liability, obligation or contingent liability.          Extension Request                                        Section 2.23(a).                                  Fronting Exposure                                           (a) with respect                                                                                                             to the L/        Facility Guaranty the Administrative Agent and the other Secured Parties, substantially in the form of Exhibit F-1           obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the  hereto, or in another form reasonably satisfactory to the Administrative Agent and the Borrower.           terms hereof, and (b)          Facility Guaranty Joinder        an agreement, substantially in the form of Annex                   participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance  I to the Facility Guaranty, or in another form reasonably satisfactory to the Administrative Agent         with the terms hereof.  and the Borrower, pursuant to which a Subsidiary becomes a party to, and bound by, the terms of  the Facility Guaranty.                                                                                            Governmental Authority                                                                                                            nation, or of any political subdivision thereof, whether state or local, and any agency, authority,         FATCA                                                                                               instrumentality,  regulatory  body,  court,  central  bank  or  other  entity  exercising  executive,                                                                                                             legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to        (a)    current Sections 1471 through 1474 of the Code, as of the date of this Agreement              government (including any supra-national bodies such as the European Union or the European  (or any amended or successor version that is substantively comparable and not materially more              Central Bank).  onerous to comply with), any current or future associated regulations or official interpretations  thereof;                                                                                                          Granting Lender                                        Section 9.04(i).         (b)    any  treaty,  law,  regulation  or  other  official  guidance  enacted  in  any  other               Grantor                     from time to time party to any Security Document, in  jurisdiction, or relating to an intergovernmental agreement between the United States and any other        its capacity as a grantor, pledgor, obligor, chargor or similar capacity thereunder.  jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or                                                                                                                    Group  Member       (c)    any  agreement  (including  any  intergovernmental  agreement)  pursuant  to  the              Group                          Borrower and its Restricted Subsidiaries.  implementation  of  paragraphs  (a)  or  (b)  above  with  the  IRS,  the  US  government  or  any  governmental or taxation authority in any other jurisdiction.                                                     GS Bank                                            FCPA                                           Section 3.25.                                               Guarantor                                                                                                            its capacity as a guarantor of the Obligations and its respective successors and assigns, until the                                         26                                                                                                         27  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






Loan  Guarantee  of  such  Person  has  been  released  in  accordance  with  the  provisions  of  this    Commitments  outstanding  under  4.04(b)(1)  as  of  the  date  of  determination),  4.04(b)(5)  and  Agreement.                                                                                                 4.04(b)(16) of  Annex  I to  this  Agreement  (together  with any  Refinancing  Indebtedness of  the                                                                                                             foregoing that is permitted to be incurred by the Borrower as Pari Passu Indebtedness at such time         Hazardous Materials                                                                                 pursuant to Section 4.04(b)(4)(c)).                                                                                                                     Incremental Loan Assumption Agreement         an Incremental Loan Assumption  any Governmental Authority or that are otherwise prohibited, limited or regulated pursuant to any          Agreement  among,  and  in  form  and  substance  reasonably  satisfactory  to,  the  Borrower,  the  Environmental  Law,  including  petroleum  or  petroleum  distillates,  friable  asbestos  or  friable     Incremental Arranger and one or more Incremental Lenders and, to the extent required pursuant to  asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes.         the third proviso of Section 9.08(b), the Administrative Agent.          Hedge Counterparty                         (a) a counterparty to a Swap Contract                           Incremental Loan Commitment                                        Section  as of the Closing Date or (b) an Agent, Lead Arranger or Lender or any Affiliate of an Agent, Lead         2.22(a).  Arranger or Lender counterparty to a Swap Contract (including any Person who was an Agent,  Lead Arranger or Lender (or any Affiliate thereof) as of the Closing Date or the date it enters into              Incremental Loan Maturity Date such Swap Contract but subsequently ceases to be an Agent, Lead Arranger or Lender (or Affiliate           Term  Loan  or  Incremental  Revolving  Credit  Commitment,  as  set  forth  in  the  applicable  thereof)) or (c) any other Person from time to time designated in writing by the Borrower and              Incremental Loan Assumption Agreement.  approved  in  writing  by  the  Administrative  Agent  (which  approval  shall  not  be  unreasonably  withheld, conditioned or delayed); provided that, if such Person is not an Agent, Lead Arranger or                Incremental Loans                                        Section 2.22(a).  a Lender, such Person executes and delivers to the Administrative Agent and the Borrower a letter  agreement  in  form  and  substance  reasonably  acceptable  to  the  Administrative  Agent  and  the             Incremental Revolving Credit Commitments               ning assigned to such  Borrower pursuant to which such Person (i) appoints the Administrative Agent as its agent under            term in Section 2.22(a).  the applicable Loan Documents and (ii) agrees to be bound by the provisions applicable to Hedge                                                                                                                    Incremental  Revolving  Credit  Lender Counterparties and/or Treasury Services Providers in the applicable Loan Documents.                                                                                                             Revolving Credit Commitment or an outstanding Revolving Credit Loan.         Hong Kong                                                                                                                   Incremental Revolving Loan                                         Section  Republic of China.                                                                                                             2.22(a).         Honor Date                             o such term in Section 2.26(c)(i).                                                                                                                    Incremental  Term  Lender                 er  with  an  Incremental  Term  Loan         Identified Participating Term Lenders                                                               Commitment or an outstanding Incremental Term Loan.  Section 2.12(c)(iii)(C).                                                                                                                    Incremental Term Loan                                       Section 2.22(a).         Identified Qualifying Term Lenders                                                                                                                   Incremental Term Loan Commitments Section 2.12(c)(iv)(C).                                                                                                             Section 2.22(a).         Incremental Arranger                                        Section 2.22(a).                                                                                                                    Indemnified Taxes         (a) Taxes other than Excluded Taxes and (b) to the extent         Incremental Facility  Closing  Date                   signed to such term in                        not otherwise described in clause (a) above, Other Taxes.  Section 2.22(a).                                                                                                                    Indemnitee                                         Section 9.05(b).         Incremental  Lenders                                                                                                                   Information                                        Section 9.16.  Incremental Revolving Credit Lender.                                                                                                                    Initial  Draw  Term  Loans                                         Section         Incremental Loan Amount                                                                                                            2.01(a).  to exceed the amount of Indebtedness permitted to be incurred by the Borrower as Pari Passu  Indebtedness at  such  time  pursuant to  Section  4.04(a),  4.04(b)(1)  (for  the  avoidance  of  doubt,         Initial Funding Date  shall mean the date on which the conditions precedent set forth in  calculated to include the full amount of Term Loans, Term Commitments and Revolving Credit                 Section 4.02 have been satisfied.                                         28                                                                                                         29  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       Initial Loans                                                                                              Interest Payment Date         (a) with respect to any ABR Loan, April 15th, July                                                                                                             15th  ,  October  15th  and  January  15th and the Maturity Date provided that if such day is not a         Initial Revolving Credit Commitment                                                                 Business Day, the Interest Payment Date shall be the next succeeding Business Day and (b) with  its Revolving Credit C                                                                                     respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of  name  in  Schedule  2.01                                                                                   which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of  applicable Assignment and Acceptance, and as may be amended from time to time pursuant to the  terms hereof.  The aggregate amount of Initial Revolving Credit Commitments as of the Effective            b Date is $400,000,000.                                                                                      applicable to such Borrowing.          Initial Revolving Credit Commitment Maturity Date shall mean October 3, 2024.                              Interest  Period                                                                                                            commencing on the date of such Borrowing and ending on the numerically corresponding day (or,         Initial Revolving Credit Lender                                                                     if there is no numerically corresponding day, on the last day) in the calendar month that is one,  Credit Commitments and/or Initial Revolving Credit Loans made pursuant thereto.                            two, three or six months (or 12 months if agreed to by all Lenders of such Loans) thereafter, as the                                                                                                             Borrower may elect; provided, however, that (a) if any Interest Period would end on a day other         Initial Revolving Credit Loan                         to such term in Section                       than a Business Day, such Interest Period shall be extended to the next succeeding Business Day  2.01(b).                                                                                                   unless such next succeeding Business Day would fall in the next calendar month, in which case                                                                                                             such Interest Period shall end on the next preceding Business Day, (b) any Interest Period that         Initial Term Loans                                       Section 2.01(a).                                                                                                             begins on the last Business Day of a calendar month (or on a day for which there is no numerically         Initial Term Loan Commitment                                                                        corresponding day in the calendar month at the end of such Interest Period) shall end on the last  make an Initial Term Loan to the Borrower pursuant to Section 2.01(a) in an aggregate amount not           Business Day of the calendar month at the end of such Interest Period and (c) no Interest Period                                                       Schedule 2.01 under the caption                       for any Loan shall extend beyond the maturity date of such Loan.  Interest shall accrue from and                                                                                                             including the first day of an Interest Period to but excluding the last day of such Interest Period.   amount of the Initial Term Loan Commitments as of the Effective Date is $500,000,000.                      For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing                                                                                                             is made and thereafter shall be the effective date of the most recent conversion or continuation of         Initial Term Loan Facility                                      nts  and  the                       such Borrowing.  Initial Term Loans made pursuant thereto.                                                                                                                    Internal Control Event        Initial  Term  Loan  Lender                                                                         management or other employees who have a significant role in, the Loan Parties or any of their  Commitments and/or Initial Term Loans made pursuant thereto.                                                                                                             Laws.         Initial Term Loan Maturity Date                                                                                                                                          Internally Generated Cash        Intercreditor Agreement                                                                             and its Restricted Subsidiaries not constituting proceeds of the incurrence of Indebtedness (other  of Indebtedness secured by Liens on the Collateral which are intended to rank equal in priority to         than the incurrence of Revolving Loans, extensions of credit under any other revolving credit or  the Liens on the Collateral securing the Obligations under this Agreement (but without regard to           similar  facility  or  other  short-term  Indebtedness)  by  such  Person  or  any  of  its  Restricted  the  control  of  remedies),  at  the  option  of  the  Borrower  and  the  Administrative  Agent  acting  Subsidiaries.  together in good faith, any of (a) the Closing Date Intercreditor Agreement or (b) (i) any other  intercreditor agreement substantially in the form of Exhibit D, together with any changes thereto                 Interpolated Screen Rate which are reasonably acceptable to the Administrative Agent and the Borrower or (ii) a customary           interpolating on a linear basis between:  (a) the applicable Screen Rate for the longest period (for  intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent            which that Screen Rate is available) which is less than the Interest Period of that Loan; and (b) the  and the Borrower, which agreement shall provide that the Liens on the Collateral securing such             applicable Screen Rate for the shortest period (for which that Screen Rate is available) which  Indebtedness shall rank equal in priority to the Liens on the Collateral securing the Obligations          exceeds the Interest Period of that Loan, each as of 11:00 a.m. London time on the Quotation Day  under this Agreement (but without regard to the control of remedies), in each case with such               for the currency of that Loan.  modifications thereto as the Administrative Agent and the Borrower may agree.                                                                                                                    IRS                                                                                         30                                                                                                         31  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






                                                                                                                     ISP                                                                                                        Laws                                                                                                            guideline,  regulation,  ordinance,  code  and  administrative  or  judicial  precedent  or  authority,  version thereof as may be in effect at the time of issuance).                                              including the interpretation or administration thereof by any Governmental Authority charged with                                                                                                             the enforcement, interpretation or administration thereof, and each applicable administrative order,         Issuer Documents                                      dit, the Letter of Credit                     directed duty, request, license, authorization and permit of, and agreement with, any Governmental  Application, and any other document, agreement and instrument entered into by the L/C Issuer               Authority, in each case whether or not having the force of law.  and the Borrower (or any Restricted Subsidiary) or in favor of the L/C Issuer and relating to such  Letter of Credit.                                                                                                 Lead Arrangers                                      organ  Chase  Bank  N.A.,                                                                                                             Citigroup  Global  Markets  Limited  and  Citizens  Bank,  N.A.,  each  in  its  capacity  as  a  lead         Judgment Currency  shall have the meaning assigned to such term in Section 9.21.                    bookrunner and lead arranger.          L/C Advance                                                                                                Legal Reservations     (a) the principle that equitable remedies are remedies which  funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.                   may be granted or refused at the discretion of the court and principles of good faith and fair dealing,                                                                                                             (b) applicable Bankruptcy Laws, (c) the existence of timing limitations with respect to the bringing         L/C Borrowing                                                                                       of  claims  under  applicable  limitation  laws  and  the  defenses  of  acquiescence,  set-off  or  Letter  of  Credit  which  has  not  been  reimbursed  on  the  date  when  made  or  refinanced  as  a    counterclaim and the possibility that an undertaking to assume liability for, or to indemnify a  Revolving Credit Borrowing.                                                                                Person  against,  non-payment  of  stamp  duty  may  be  void,  (d)  the  principle  that  in  certain                                                                                                             jurisdictions and under certain circumstances a Lien granted by way of fixed charge may be re-        L/C  Credit  Extension                                                                              characterized as a floating charge or that security purported to be constituted as an assignment may  thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.         be re-characterized as a charge, (e) the principle that additional interest imposed pursuant to any                                                                                                             relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus         L/C Exposure                                   tion, the total L/C Obligations.                                                                                                              void, (f) the principle that a court may not give effect to an indemnity for legal costs incurred by  The L/C Exposure of any Revolving Credit Lender at any time shall be its Pro Rata Share of the                                                                                                             an unsuccessful litigant, (g) the principle that the creation or purported creation of collateral over  total L/C Exposure at such time; provided that in the case of Section 2.01(b), Section 2.26(a)(i)                                                                                                             any  claim,  other  right,  contract  or  agreement  which  is  subject  to  a  prohibition  on  transfer,  and clause (iii) of the proviso to Section 2.27(a) when a Defaulting Lender shall exist, the L/C                                                                                                             assignment or charging may be void, ineffective or invalid and may give rise to a breach of the  Exposure  of  any  Revolving  Credit  Lender  shall  be  adjusted  to  give  effect  to  any  reallocation                                                                                                             contract or agreement (or contract or agreement relating to or governing the claim or other right)  effected in accordance with Section 2.25(c).                                                                                                             over which collateral has purportedly been created, (h) similar principles, rights and defenses under         L/C Issuer                                         Initial L/C Issuers                              the laws of any relevant jurisdiction and (i) any other matters which are set out as qualifications or  any other Lender that becomes an L/C Issuer in accordance with Section 2.26(k), in its capacity as         reservations (however described) as to matters of law in any legal opinion delivered pursuant to  an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.          the Loan Documents.          L/C  Obligations                                                                                           Lenders  shall mean (a) the Persons listed on Schedule 2.01 (other than any such Person  available  to  be  drawn  under  all  outstanding  Letters  of  Credit  plus  the  aggregate  of  all      that has ceased to be a party hereto pursuant to an Assignment and Acceptance) and (b) any Person  Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount                  that has become a party hereto pursuant to an Assignment and Acceptance, including, without  available to be drawn under any  Letter of Credit, the amount of such  Letter of Credit shall be           limitation, the Initial Term Loan Lenders and the Initial Revolving Credit Lenders (including, as  determined in accordance with Section 2.26.  For all purposes of this Agreement, if on any date of         the context so requires, any L/C Issuer and the Swing Line Lender).  determination a  Letter of Credit has expired by its terms but any amount may still be drawn                                                                                                                    Letter of Credit thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed                                                                                                             be a standby letter of credit.                                        g available to be drawn.                                                                                                                    Letter of Credit Application        Latest Maturity Date                                                                                                            or amendment of a Letter of Credit in the form from time to time in use by the relevant L/C Issuer  applicable to any Class of Loans or Commitments with respect to such Loans or Commitments at                                                                                                             and reasonably satisfactory to the Borrower.  such date of determination, including, for the avoidance of doubt, the latest maturity date of any  Incremental Loans, Incremental Loan Commitments, Other Loans or Extended Term Loans, in                           Letter of Credit Expiration Date each case, as extended from time to time in accordance with this Agreement.                                to  the  scheduled  Latest  Maturity  Date  then  in  effect  for  the  Participating  Revolving  Credit                                                                                                             Commitments (taking into account the Maturity Date of any conditional Participating Revolving                                         32                                                                                                         34  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.1776797407_20 





 






Credit Commitment that will automatically go into effect on or prior to such Maturity Date (or, if                Loan Escrow Condition             e requirement that in the event that the Initial  such day is not a Business Day, the next preceding Business Day)).                                         Funding Date has occurred, and (a) the Closing Date does not take place on or prior to the date                                                                                                             that  is  two  Business  Days  after  the  Initial  Funding  Date  (or  such  longer  period  as  the         Letter  of  Credit  Issuer  Sublimit                             (a)  BNP,                          Administrative  Agent  may  agree  in  its  sole  discretion)  (as  extended  in  accordance  with  the  $75,000,000 (or such other amount as may be agreed between such L/C Issuer and the Borrower                                                            Non-Escrow  Period      (b)  the  Early  from time to time), (b) GS Bank, $75,000,000 (or such other amount as may be agreed between                Termination Amount payment has not otherwise already been made, the Borrower shall no later  such L/C Issuer and the Borrower from time to time) and (c) any other Person that is a L/C Issuer,         than the Loan Escrow Funding Date, with respect to the aggregate principal amount of any Term  such other amount as may be agreed between such other L/C Issuer and the Borrower at the time              Loans outstanding at such time, enter into a loan escrow agreement or arrangement (including with  such Person becomes a L/C Issuer or from time to time thereafter.                                                                                   ilar arrangement) (collectively, along with any                                                                                                                                                                                  Loan Escrow         Letter of Credit Sublimit                                              (a)                          Documents $150,000,000 (as may be adjusted pursuant to Section 2.26 and/or as may be modified by the                 with respect to the conditions to release from  escrow), provided  that  the  escrow  arrangement  Borrower and each L/C Issuer) and (b) the aggregate amount of the Participating Revolving Credit           provisions set forth in the Commitment Letter are reasonably satisfactory to the Administrative  Commitments at such time.  The Letter of Credit Sublimit is part of, and not in addition to, the           Agent.  Participating Revolving Credit Commitments.                                                                                                                    Loan Escrow Documents                                         the definition         LIBO Rate                                    Borrowing for any Interest Period,                                               the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London  time) on the date that is two Business Days prior to the commencement of such Interest Period                     Loan Escrow Funding Date (a) by reference to ICE Benchmark Administration LIBO Rate for deposits in dollars (as set forth           Business Day of the Non-Escrow Period; provided that the Non-Escrow Period shall be extended  by  any  commercially  available  source  providing  quotations  of  LIBO  Rate  selected  by  the         by successive periods of one Business Day upon delivery of a written notice from a Responsible  Administrative Agent) for a period equal to such Interest Period; or (b) if the rate in clause (a) is      Officer  of  the  Borrower  stating  that  the  Borrower  expects  in  good  faith  to  consummate  the  unavailable for the Interest Period, the Interpolated Screen Rate or (c) if the rate in clauses (a) and    Acquisition  in  accordance  with  the  terms  of  the  Acquisition  Agreement  on  such  additional  (b)                                                                                                        Business Day, which notice shall be delivered on or prior to 5:00 p.m. (New York City time) on  Administrative Agent to be the average of the rates per annum at which deposits in Dollars are             the last Business Day of the applicable Non-Escrow Period (after giving effect to any previous  offered for such relevant Interest Period to major banks in the London interbank market in London,         extensions permitted hereby).   England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that  is two Business Days prior to the beginning of such Interest Period.                                              Loan Parties                                    arties  and the  Non-U.S.  Loan                                                                                                             Parties.         Limited Condition Transaction        (a) any acquisition of any assets, business or  Person, other investment or similar transaction (whether by merger, amalgamation, consolidation                   Loans or  other  business  combination  or  the  acquisition  of  Capital  Stock  or  otherwise)  permitted      Loans, Refinancing Loans or Swing Line Loans, as the context may require.  hereunder by one or more of the Borrower and its Restricted Subsidiaries whose consummation is  not conditioned on the availability of, or on obtaining, third party financing , (b) any redemption,              Longstop Date                             provided,  that,  in  the  event  that  the  repurchase,  defeasance,  satisfaction  and  discharge  or  repayment  of  Indebtedness  requiring         Outside Date (as defined in the Merger Agreement as in effect as of June 16, 2019) is extended  irrevocable  notice  in  advance  of  such  redemption,  repurchase,  defeasance,  satisfaction  and       pursuant to Clause 7.1(b)(i) thereof, such date shall be extended to the extended Outside Date  discharge or repayment and (c) any Restricted Payment requiring irrevocable notice in advance              (provided that such extension shall not exceed ninety (90) days from such date).  thereof.                                                                                                                   "Luxembourg" shall mean the Grand Duchy of Luxembourg.         Loan  Documents Agreement,  the  Facility  Guaranty,  any  Intercreditor  Agreement,  any  Additional  Intercreditor             "Luxembourg Companies' Register" shall mean the Luxembourg Register of Commerce  Agreement,  the  Security  Documents,  each  Incremental  Loan  Assumption  Agreement,  each               and Companies (R.C.S. Luxembourg).   Refinancing Amendment, each Extension Amendment, the Subsidiary Revolver Borrower Joinder,  the promissory notes, if any, executed and delivered pursuant to Section 2.04(e) and together with               "Luxembourg Loan Party" shall mean the each Non-U.S. Loan Party incorporated under  all schedules, exhibits, annexes and other attachments thereto.                                            the laws of Luxembourg.                                           34                                                                                                         35  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       Major Representations                                                                                      Maximum Rate                                          Section 9.09.  Borrower in Sections 3.01(a)(i) (with respect to the organizational existence of the Loan Parties  only), 3.01(a)(ii)(B), 3.02(a), 3.04, 3.14, 3.20(a), 3.24(a) and the second sentence of Section 3.25              Merger Sub (in the case of Section 3.24(a) and 3.25 solely with respect to the use of the proceeds of the Initial     to this Agreement.  Term Loans).                                                                                                                                                                                              Master  Agreement                                                                                                                   Multiemployer Plan                                                   (37)                                                                                                             of ERISA.         Material  Adverse  Effect        (a)  a  material  adverse  change  in,  or  a  material  adverse effect upon, the operations, business, properties or condition (financial or otherwise) of                Non-Consenting Lender  means, in the event that (a) the Borrower or the Administrative  the Loan Parties and their Subsidiaries taken as a whole; (b) a material impairment of the ability         Agent has requested that the Lenders consent to a departure or waiver of any provisions of the  of the Loan Parties to perform their obligations under the Loan Documents; or (c) a material               Loan Documents or agree to any amendment thereto, (b) the consent, waiver or amendment in  impairment of the rights and remedies of the Administrative Agent or the Lenders under the Loan            question requires the agreement of each Lender, all affected Lenders or all the Lenders with respect  Documents or a material adverse effect upon the legality, validity, binding effect or enforceability       to a certain Class or Classes of the Loans and/or Commitments and (c) the Required Lenders or  against the Loan Parties of the Loan Documents.  In determining whether any individual event               Required Class Lenders, as applicable, have agreed to such consent, waiver or amendment, any  would result in a Material Adverse Effect, notwithstanding that such event in and of itself does not       Lender who does not agree to such consent, waiver or amendment.  have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative  effect of such event and all other then existing events described in the applicable provision since               Non-Defaulting  Lender the applicable date would result in a Material Adverse Effect.                                             Lender.          Material Contract                                                                                          Non-Expiring Credit  Commitment to which such Loan Party is a party that is deemed to be a material contract or material definitive        Section 2.27(g).  agreement  under  any  Securities  Laws,  including  the  types  of  contracts  specified  in  item                                                                                                                    Non-Extended Class                                        Section 2.23(a).  601(b)(10)(ii) of Regulation S-K, and in the event that at any time hereafter the Borrower ceases  to be required to comply with the Securities Laws, then the same definitions shall continue to apply              Non-Extended Revolving Credit Commitments for purposes of this Agreement and the other Loan Documents.                                               term in Section 2.23(a).          Material Indebtedness                                                                                      Non-Extended Term Loans                                            Section  Restricted Subsidiaries in an aggregate principal amount exceeding $25 million.  For purposes of           2.23(a).  determining the amount of Material Indebtedness at any time, (a) the amount of the obligations in  respect of any Swap Contract at such time shall be calculated at the Swap Termination Value                       Non-extension Notice Date                                          Section  thereof, (b) undrawn committed or available amounts shall be included and (c) all amounts owing            2.26(b)(iii).  to all creditors under any combined or syndicated credit arrangement shall be included.                                                                                                                    Non-U.S. Loan  Parties               arantor  incorporated  or established and/or         Material Subsidiary                                                                                 having its registered office outside the United States, any state thereof or the District of Columbia.  Subsidiary.                                                                                                                    Non-U.S. Security Documents  means (a) each security or pledge agreement listed on         Maturity  Date         n  (a)  the  Initial  Term  Loan  Maturity  Date,  (b)  the  Initial         Schedule 1.01, and (b) each other security or pledge agreement executed by a Non-U.S. Loan Party  Revolving Credit Commitment Maturity Date, (c) with respect to any Class of Extended Term                  (or by any Loan Party under a law other than the laws of the United States or any State thereof)  Loans or Extended Revolving Credit Commitments, the final maturity date as specified in the                pursuant to Section 5.14 in form and substance reasonably satisfactory to the Administrative Agent  applicable Extension Request accepted by the respective Lender or Lenders, (d) with respect to             and the Borrower.  any Refinancing Term Loans or Refinancing Revolving Credit Commitments, the final maturity  date  as  specified  in  the  applicable  Refinancing  Amendment,  and  (e)  with  respect  to  any               NPL                                                  Incremental  Loans or  Incremental  Revolving Credit  Commitments,  the  final  maturity  date  as  specified in the applicable Incremental Loan Assumption Agreement; provided that, in each case,                   Obligations if such day is not a Business Day, the immediately preceding Business Day.                                 and description owing by any Loan Party (or with respect to any Swap Contracts or Treasury                                         36                                                                                                         37  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






Services  Agreement,  any  Restricted  Subsidiary),   to  any  Secured  Party,  including  principal,      June 30, 2019, and for the comparable period of the prior fiscal year as filed on Form 10-Q with  interest,  charges,  fees,  premiums,  indemnities  and  expenses,  however  evidenced,  whether  as       the Securities and Exchange Commission.  principal, surety, endorser, guarantor or otherwise, arising under any of the Loan Documents, the  Swap  Contracts or  the  Treasury  Services  Agreements  (as  applicable)  whether  now  existing  or             Original Revolving Credit Commitments hereafter arising, whether arising before, during or after the initial or any renewal term of the Loan     in Section 2.23(a).  Documents, the Swap Contracts or the Treasury Services Agreements (as applicable) or after the  commencement of any case with respect to any Loan Party under the Bankruptcy Code or any                          Original Term Loans                                        Section 2.23(a).  other Bankruptcy Law or any other insolvency proceeding (and including any principal, interest,  Letter of Credit fees, fees, costs, expenses and other amounts which would accrue and become due                  Other Connection Taxes but for the commencement of such case, whether or not such amounts are allowed or allowable in             Agent, Taxes imposed as a result of a present or former connection between such Lender or  whole  or  in  part  in  such case  or  similar  proceeding),  whether  direct  or  indirect,  absolute  or Administrative  Agent,  as  applicable,  and  the  jurisdiction  imposing  such  Tax  (other  than  contingent,  joint  or  several,  due  or  not  due,  primary  or  secondary,  liquidated  or  unliquidated, connections  arising  solely  from  such  Lender  or  Administrative  Agent,  as  applicable,  having  secured or unsecured.                                                                                      executed, delivered, become a party to, performed its obligations under, received payments under,                                                                                                             received or perfected a security interest under, engaged in any other transaction pursuant to or         OFAC                                                                                                enforced any Loan Document.  of the Treasury.                                                                                                                    Other Loans                                         Section 2.22(a).         Offered Amount                                        Section 2.12(c)(iv)(A).                                                                                                                    Other Revolving Credit Loan Commitments        Offered  Discount                                                  Section                          term in Section 2.22(b).  2.12(c)(iv)(A).                                                                                                                    Other Revolving Credit Loans                                       Section         Offering  Memorandum  means  the  offering  memorandum  in  relation  to  the  Senior               2.22(b).  Secured Notes issued on October 2, 2019.                                                                                                                    Other Taxes        OID                                                                                                 recording, filing Taxes or any other excise or property Taxes, charges or similar levies arising from                                                                                                             any payment made under any Loan Document or from the execution, delivery or enforcement of,         Organization Documents           (a) with respect to any corporation, the certificate               or otherwise with respect to, any Loan Document except any such Taxes that are Other Connection  or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents            Taxes imposed with respect to an assignment, grant of a participation, designation of a new office  with respect to any non-US jurisdiction); (b) with respect to any limited liability company, the           for  receiving  payments  by  or  on  account  of  the  Borrower  or  other  transfer  (other  than  an  certificate or articles of formation or organization and operating agreement; (c) with respect to any      assignment or designation of a new office made pursuant to Section 2.21).  partnership, joint venture, trust or other form of business entity, the partnership, joint venture or  other applicable agreement of formation or organization and any agreement, instrument, filing or                  Other Term Loans                                         Section 2.22(b).  notice  with  respect  thereto  filed  in  connection  with  its  formation  or  organization  with  the  applicable  Governmental  Authority  in  the  jurisdiction  of  its  formation  or  organization  and,  if        Outstanding Amount           (a) with respect to the Term Loans, Revolving Credit  applicable, any certificate or articles of formation or organization of such entity; (d) with respect      Loans and Swing Line Loans on any date, the outstanding amount thereof after giving effect to  to any other form of entity, such other organizational documents required by local Requirements            any  borrowings  and  prepayments  or  repayments  of  Term  Loans,  Revolving  Credit  Loans  of Law or customary under such jurisdiction to document the formation and governance principles            (including any refinancing of outstanding Unreimbursed Amounts under Letters of Credit or L/C  of such type of entity; and (e) in each case, all shareholder or other equity holder agreements,           Credit Extensions as a Revolving Credit Borrowing) and Swing Line Loans, as the case may be,  voting trusts and similar arrangements to which such Person is a party.                                    occurring on such date; and (b) with respect to any L/C Obligations on any date, the outstanding                                                                                                             amount thereof on such date after giving effect to any related L/C Credit Extension occurring on         Original Class                                        Section 2.23(a).                              such date and any other changes thereto as of such date, including as a result of any reimbursements                                                                                                             of outstanding Unreimbursed Amounts under related Letters of Credit (including any refinancing         Original Financial Statements         (a)  the  Audited  Financial  Statements  and                 of  outstanding  Unreimbursed  Amounts  under  related  Letters  of  Credit  or  related  L/C  Credit  (b) the unaudited consolidated balance sheets and unaudited condensed consolidated statements of           Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available  income, comprehensive income and changes in cash flow of Target for the fiscal quarter ended               for drawing under related Letters of Credit taking effect on such date.                                          38                                                                                                         39  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       Parent Guarantor                                                                                           Person                    person, corporation, limited liability company, trust, joint                                                                                                             venture, association, company, partnership, limited partnership, Governmental Authority or other         Participating Member State                                                                          entity.  the euro as its lawful currency in accordance with legislation of the European Union relating to  Economic and Monetary Union.                                                                                      Plan           any employee pension benefit plan (other than a Multiemployer Plan)                                                                                                             subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,         Pari Passu Indebtedness         (a) with respect to the Borrower, any Indebtedness                  and in respect of which any Borrower or any ERISA Affiliate is (or, if such plan were terminated,  that ranks pari passu in right of payment and security to the Loans; and (b) with respect to the  Guarantors,  any  Indebtedness  that  ranks  pari  passu  in  right  of  payment  and  security  to  such  of ERISA.                                                                                                                                              Planned Expenditures                                             (b)(xii) in         Pari Ratable Share                                     (a) with respect to the                                                       Term Loans, a fraction, the numerator of which is the aggregate outstanding principal amount of  the Term Loans and the denominator of which is the total aggregate principal amount of all then                   Platform                                        Section 9.01.  outstanding Pari Passu Indebtedness and Term Loans and (b) with respect to any other class of  Pari Passu Indebtedness, a fraction, the numerator of which is the aggregate principal amount of                  Prime Rate such class of Pari Passu Indebtedness and the denominator of which is the total aggregate principal        BNP as its prime rate in effect at its principal office in New York City and notified to the Borrower.  amount of all then outstanding Pari Passu Indebtedness and Term Loans.                                                                                                                    Pro Rata Share                     (a) with respect to all payments, computations         Participant Register                                      Section 9.04(f).                          and other matters relating to the Term Loans or Term Commitments of any Class held by any                                                                                                             Lender, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator         Participating Revolving Credit Commitments      (a) the Initial Revolving Credit                    of which is the amount of the Term Loans, and if applicable, Term Commitments of such Class  Commitments (including (unless otherwise selected by the Borrower) any Extended Revolving                  held by such Lender at such time and the denominator of which is the aggregate amount of all  Credit Commitments in respect thereof) and (b) those additional Revolving Credit Commitments               Term Loans, and if applicable, all Term Commitments of such Class at such time, (b) with respect  (including  (unless  otherwise  selected  by  the  Borrower)  any  Extended  Revolving  Credit             to  all  payments,  computations  and  other  matters  (including  participation  in  Letters  of  Credit)  Commitments  in  respect  thereof)  established  pursuant  to  an  Incremental  Loan  Assumption           relating to the Revolving Credit Loans or Revolving Credit Commitments of any Class held by  Agreement, Refinancing Amendment or Extension Amendment for which an election has been                     any Lender, a fraction (expressed as a percentage, carried out to the ninth decimal place), the  made to include such Commitments for purposes of the issuance of Letters of Credit or the making           numerator of which is the amount of the Revolving Credit Commitments of such Class held by  of Swing Line Loans; provided, that, with respect to clause (b), the effectiveness of such election        such Lender at such time and the denominator of which is the aggregate amount of all Revolving  may be made conditional upon the maturity of one or more other Participating Revolving Credit              Credit  Commitments  of  such  Class  at  such  time  (provided  that  if  such  Revolving  Credit  Commitments.  At any time at which there is more than one Class of Participating Revolving                 Commitments have been terminated, then the Pro Rata Share of such Lender shall be determined  Credit Commitments outstanding, the mechanics and arrangements with respect to the allocation              based on the Pro Rata Share of such Lender immediately prior to such termination and after giving  of Letters of Credit and Swing Line Loans among such Classes will be subject to procedures agreed          effect  to  any  subsequent assignments  made  pursuant  to  the  terms  hereof)  and  (c)  for  all other  to by the Borrower and the Administrative Agent.                                                           purposes,  a  fraction  (expressed  as  a  percentage,  carried  out  to  the  ninth  decimal  place),  the                                                                                                             numerator  of  which  is  the  aggregate  amount  of  the  Term  Loans,  and  if  applicable,  Term         Participating Revolving Credit Lender                                                               Commitments, of each Class, and of the Revolving Credit Commitments of each Class, in each  Revolving Credit Commitment.                                                                               case held by such Lender at such time and the denominator of which is the aggregate amount of                                                                                                             all Term Loans, and if applicable, all Term Commitments, of each Class, and of all Revolving         Participating Term Lender                                          Section                          Credit Commitments of each Class at such time (provided that if the Commitments of any Class  2.12(c)(iii)(B).                                                                                           have been terminated, then the Pro Rata Share of such Lender shall be determined based on the                                                                                                             Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any         PBGC                                                                                                subsequent assignments made pursuant to the terms hereof).  During any period in which there is                                                                                                                                                                                      2.05(a),         PCAOB                                                    rd.                                                                                                             2.26(d)(ii) and 2.27(d)(ii)        Permitted Expenditures                                             (b)(xii)                         adjusted to give effect to any reallocation effected in accordance with Section 2.25(c).                                                                            40                                                                                                         41  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       PTE                                                                                                        Refinancing Revolving Loan                                         Section  Labor, as any such exemption may be amended from time to time.                                             2.24(b).          Public Lender                               uch term in Section 9.01.                                      Refinancing  Term  Commitments                                                                                                            Section 2.24(a).         QFC                                           Section 9.23(b).                                                                                                                    Refinancing  Term  Lender                                          Section         Qualifying  Term  Lender                                           Section                          2.24(c).  2.12(c)(iv)(C).                                                                                                                    Refinancing  Term  Loan                                            Section         Quotation  Day                           y  period  for  which  interest  is  to  be                2.24(b).  determined, two Business Days before the first day of that period.                                                                                                                    Register                                        Section 9.04(d).         Real Estate or other estate) in and to any and all parcels of or interests in real property owned, leased or                  Registered Public Accounting Firm operated  by  the  Borrower,  any Group  Member  or  any  of  their  Subsidiaries, whether  by lease,      Laws and  shall be  independent of  the Borrower,  any Group  Member  and their  Subsidiaries as  license  or  other  means,  and  the  buildings,  structures,  parking  areas  and  other  improvements    prescribed by the Securities Laws.  thereon, now or hereafter owned by the Borrower, any Group Member or any of their Subsidiaries,  including all fixtures, easements, hereditaments, appurtenances, rights-of-way and similar rights                 Regulation D            egulation D of the Board as from time to time in effect and  relating thereto and all leases, tenancies and occupancies thereof now or hereafter owned by the           all official rulings and interpretations thereunder or thereof.  Borrower, any Group Member or any of their Subsidiaries.                                                                                                                    Regulation T        Refinanced Debt                                         Section 2.24(a).                            all official rulings and interpretations thereunder or thereof.          Refinancing  Amendment   shall  have  the  meaning  assigned  to  such  term  in  Section                  Regulation U 2.24(f).                                                                                                   all official rulings and interpretations thereunder or thereof.          Refinancing Commitments                                            Section                                 Regulation X                                                               2.24(a).                                                                                                   all official rulings and interpretations thereunder or thereof.          Refinancing Facility Closing Date                                                                          Rejection Notice                                       Section 2.13(g).  Section 2.24(d).                                                                                                                    Related Fund   all mean, with respect to any Lender that is a fund or commingled         Refinancing Lenders                                        Section 2.24(c).                         investment vehicle that invests in bank loans, any other fund that invests in bank loans and is                                                                                                             managed or advised by the same investment advisor as such Lender or by an Affiliate of such         Refinancing  Loan                                      d/or  any  Refinancing                       investment advisor.  Revolving Loans, as the context may require.                                                                                                                    Related Parties        Refinancing Loan Request                                           Section                          partners,  members,  controlling  persons,  directors,  officers,  employees,  agents,  advisors,  2.24(a).                                                                                                   representatives and successors and assigns of such Person                           Refinancing Revolving Credit Commitments                                                                   Release                                                                   term in Section 2.24(a).                                                                                                                    Repayment Date                                    Section 2.11(a).         Refinancing Revolving Credit Lender                     gned to such term in  Section 2.24(c).                                                                                                  Repricing  Transaction          (a)  the  prepayment,  refinancing,  substitution  or                                                                                                             replacement of all or a portion of the Initial Term Loans with the incurrence by the Borrower or                                                                                                             any Subsidiary of any senior secured loan financing, the primary purpose of which (as determined                                         42                                                                                                         43  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






in good faith by the Borrower) is to reduce the All-In Yield of such debt financing relative to the        treaties,  standards,  rules  and  regulations,  guidelines,  ordinances,  orders,  judgments,  writs,  Initial Term Loans so repaid, refinanced, substituted or replaced and (b) any amendment to this            injunctions,  decrees  (including  administrative  or  judicial  precedents  or  authorities)  and  the  Agreement the primary purpose of which (as determined in good faith by the Borrower) is to                 interpretation or administration thereof by, and other determinations, directives, requirements or  reduce the All-In Yield applicable to the Loans; provided that any refinancing or repricing of Initial     requests of any Governmental Authority, in each case whether or not having the force of law and  Term  Loans in  connection with  (i) any Public Offering, (ii) any acquisition the  aggregate              that are applicable to or binding upon such Person or any of its property or to which such Person  consideration with respect to which equals or exceeds $50,000,000 or (c) a transaction that would          or any of its property is subject.  result in a Change of Control shall not constitute a Repricing Transaction.                                                                                                                    Resolution Authority                                            son which         Request for Credit Extension        (a) with respect to a Borrowing, continuation                   has authority to exercise any Write-Down and Conversion Powers.  or conversion of Term Loans, Revolving Credit Loans or Swing Line Loans, a Borrowing Request,  and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.                                  Responsible Officer                                                                                                            president of tax, controller, treasurer, assistant treasurer, secretary, assistant secretary of a Loan         Required Class Lenders                                                                              Party or, with the consent of the Administrative Agent (not to be unreasonably withheld), any of  or more Classes, Lenders having more than 50% of the sum of the (a) Total Outstandings under               the other individuals designated in writing to the Administrative Agent by an existing Responsible                                                                                                             Officer  of  a  Loan  Party  as an  authorized  signatory  of  any  certificate  or  other  document  to  be  participation in L/C Obligations and Swing Line Loans, if applicable, under such Class or Classes          delivered hereunder.                                             of this definition) and (b) aggregate unused  Commitments under such Class or Classes; provided that the unused Commitment of, and the                          Revolving  Credit  Borrowing portion of the Total Outstandings held under such Class or Classes, or deemed held by, any                 Revolving Credit Loans of the same Type and, in the case of Eurodollar Loans, having the same  Defaulting Lender shall be excluded for purposes of making a determination of Required Class               Interest Period, made by each of the Revolving Credit Lenders pursuant to Section 2.01(b).  Lenders.                                                                                                                   Revolving  Credit  Commitment        Required Lenders                                                                                    obligation to (a) make Revolving Credit Loans to the Borrower, (b) purchase participations in L/C  50% of the sum of the (a) Total Outstandings (with the aggregate am                                        Obligations in respect of Letters of Credit and (c) purchase participations in Swing Line Loans, as  participation and funded participation in L/C Obligations and Swing Line Loans being deemed                such commitment may be (i) reduced from time to time pursuant to Section 2.09 and (ii) reduced                                                (b) aggregate unused Term Commitments                        or increased from time to time pursuant to (A) assignments by or to such Revolving Credit Lender  and (c) aggregate unused Revolving Credit Commitments; provided that the  unused Term                      pursuant  to  an  Assignment and  Acceptance,  (B)  an Incremental  Loan  Assumption Agreement,  Commitment and unused Revolving Credit Commitment of,  and the  portion  of  the  Total                    (C) a Refinancing Amendment or (D) an Extension Amendment.  The amount of each Revolving  Outstandings held, or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.                                                                Commitment,  as  may  be  amended  pursuant  to  any  Incremental  Loan  Assumption  Agreement,                                                                                                             Extension  Amendment  or  Refinancing  Amendment  pursuant  to  which  such  Lender  shall  have         Required  Revolving  Credit  Lenders                                                                assumed, increased or decreased its Revolving Credit Commitment, as the case may be.              Revolving Credit  Lenders under the Revolving Credit Commitments (including,  for  purposes  of                                                (a)  any  Extended                               Revolving Credit Exposure Revolving  Credit  Commitments  in  respect  thereof,  and  (b)  Incremental  Revolving  Credit            the  Outstanding  Amount  of  such  Revolving  Credit  Commitments  and  (c) Refinancing Revolving Credit Commitments in respect thereof) having                  Exposure and its Swing Line Exposure at such time; provided that in the case of each of Section  more than 50% of the sum of  the  (i)  Outstanding  Amount  of  all  Revolving  Credit  Loans,             2.26(a)(i) and Section 2.27(a) when a Defaulting Lender shall exist, the Revolving Credit Exposure  Swing  Line  Loans  and  all  L/C                                                                          of any Revolving Credit Lender shall be adjusted to  give effect to any reallocation effected in                              participation in L/C Obligations and Swing Line Loans                          accordance with Section 2.25(c).                                 purposes  of  this  definition)  under  the  Initial  Revolving  Credit  Commitments  and  (ii)  aggregate unused Revolving Credit Commitments; provided that                      Revolving Credit Facilities unused Revolving Credit Commitments of, and  the portion  of the Outstanding  Amount of all                Agreement.  Revolving Credit Loans, Swing Line Loans and all L/C Obligations held, or deemed held by, any  Defaulting  Lender  shall  be  excluded  for  purposes  of  making  a  determination  of  Required                Revolving Credit Lender Revolving Credit Lenders.                                                                                  Commitment at such time or, if Revolving Credit Commitments have terminated, Revolving Credit                                                                                                             Exposure.         Requirements of Law and all federal, state, local, foreign, national, multinational or international laws, statutes, codes,                                           45                                         44                                                                  76797407_14                                                                                                             EU-DOCS\25892879.17  76797407_14 EU-DOCS\25892879.17





 






       Revolving Credit Loans                                               lving                                 Security Documents     mean the U.S. Pledge and Security Agreement, the Non-U.S.  Credit Commitments, any Incremental Revolving Loan, any Refinancing Revolving Loan or any                  Security Documents and any other document entered into by any person granting a Lien over all  loan under any Extended Revolving Credit Commitments, as the context may require.                          or  any  part  of  its  assets  in  respect  of  the  Obligations,  in  each  case  as  amended,  restated,                                                                                                             supplemented or otherwise modified from time to time.         S&P                                                                                                                                                                    Senior Secured Notes        Sanctioned Country                                                                                  2027, governed by an indenture dated as of October 2, 2019, entered into among, inter alios, the  target of comprehensive economic sanctions administered by OFAC, which currently includes:                 Borrower as Issuer and Deutsche Bank Trust Company Americas as trustee.  Crimea, Cuba, Iran, North Korea, and Syria.                                                                                                                                                                                          Solicited Discount Proration                                       Section         Sanctions           (a) economic or financial sanctions or trade embargoes imposed,                 2.12(c)(iv)(C).  administered or enforced from time to time by:  (i) the US government and administered by OFAC,  (ii)  the United Nations  Security  Council,  (iii)  the  European  Union,  (iv)  the  government  of, or         Solicited Discounted Prepayment Amount                                                                            (v) the                         in Section 2.12(c)(iv)(A).  State Secretariat for Economic Affairs of Switzerland, (vi) the French General Directorate of the  Treasury  or  (vii)  the Hong  Kong  Monetary  Authority or  (b)  economic  or  financial  sanctions              Solicited Discounted Prepayment Offers imposed,  administered  or  enforced  from  time  to  time  by  the  US  State  Department,  the  US       in the definition of Borrower Solicitation of Discounted Prepayment Offers.  Department of Commerce or the US Department of the Treasury.                                                                                                                    Solicited Discounted Prepayment Response Date                           o         Sanctions List                                                                                      such term in Section 2.12(c)(iv)(A).  persons or entities (or equivalent) held by:  (a) the US government and administered by OFAC,  the US State Department, the US Department of Commerce or the US Department of the Treasury,                      Solvent (b) the United Nations Security Council, (c) the European Union, (d)                                       (a)  the United Kingdom, (e) the State Secretariat for Economic Affairs of Switzerland or (f) the Hong                                                            (b)  Kong Monetary Authority, each as amended, supplemented or substituted from time to time.                   unreasonably small in relation to its business as contemplated on such date of determination or                                                                                                             with respect to any transaction contemplated or undertaken after such date of determination; or         Screen Rate                                                                                         (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably  administered by ICE Benchmark Administration Limited (or any other person which takes over                 believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether  the administration of that rate) for the relevant period displayed on page LIBOR01 or LIBOR02              at maturity or otherwise).  For purposes of this definition, the amount of any contingent liability at  of  the  Reuters  screen  (or  any  replacement  Reuters  page  which  displays  that  rate);  or,  on  the any time shall be computed as the amount that, in light of all of the facts and circumstances existing  appropriate pages of such other information service which publishes the LIBO Rate, from time to            at such time, represents the amount that can reasonably be expected to become an actual or matured  time in place of Reuters.  If such page or service ceases to be available, the Administrative Agent        liability (irrespective of  whether such  contingent liabilities meet the criteria for  accrual under  may  specify  another  page  or  service  displaying  the  relevant  rate  after  consultation  with  the  Statement of Financial Accounting Standard No. 5) and (ii) in respect of the Luxembourg Loan  Borrower.                                                                                                  Party, that such entity is not unable to pay its debts (in particular, it is not in a state of cessation of                                                                                                             payments (cessation de paiements) and has not lost its commercial creditworthiness) and would         Section 2.23 Additional Agreement                                                                   not become unable to do so.  Section 2.23(d).                                                                                                                    Specified Acquisition Agreement Representations        Secured  Parties                                (a)  the  Administrative  Agent,                    by the Target with respect to the Target and its subsidiaries in the Acquisition Agreement as are  (b) the  Collateral  Agent,  (c)  the  Lenders,  (d)  the  beneficiaries  of  each  indemnification  or    material to the interests of the Lenders, but only to the extent that the Parent Guarantor (or any of  reimbursement obligation undertaken by any Loan Party under any Loan Document, (e) the Hedge               its Affiliates) has the right (taking into account any applicable cure provisions set forth in the  Counterparties, (f) the Treasury Services Providers and (g) the successors and assigns of each of                                                                 pective  obligations  under  the  the foregoing.                                                                                             Acquisition Agreement or decline to consummate  the Acquisition (in each case, in accordance                                                                                                             with the terms of the Acquisition Agreement) as a result of a breach of such representations in the         Securities Laws          he Securities Act of 1933, the Securities Exchange Act of                  Acquisition Agreement.  1934, Sarbanes-Oxley, and the applicable accounting and auditing principles, rules, standards and  practices promulgated, approved or incorporated by the SEC or the PCAOB.                                         46                                                                                                         47  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       Specified  Discount                                                Section                                                                            Master Agreement 2.12(c)(ii)(A).                                                                                            such obligations or liabilities under any Master Agreement.          Specified Discount Prepayment Response                                 rm                                  Swap Termination Value in Section 2.12(c)(ii)(A).                                                                                 after taking into account the effect of any legally enforceable netting agreement relating to such                                                                                                             Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out         Specified Discount Prepayment Response Date                                                         and termination value(s) determined in accordance therewith, such termination value(s), and (b)  term in Section 2.12(c)(ii)(A).                                                                            for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-                                                                                                            market value(s) for such Swap Contracts, as determined based upon one or more mid-market or         Specified Discount Proration                                       Section                          other  readily  available  quotations  provided  by  any  recognized  dealer  in  such  Swap  Contracts  2.12(c)(ii)(C).                                                                                            (which may include a Lender or any Affiliate of a Lender).          Specified  Event  of  Default                       (a)  any  Event  of  Default                           Swing  Line  Borrowing      mean  a  borrowing  of  a  Swing  Line  Loan  pursuant  to  described in Sections 7.01(a), 7.01(f) or 7.01(g) or (b)                                                   Section 2.27.  pursuant to the paragraph immediately following Section 7.01(j), following any other Event of  Default.                                                                                                          Swing Line Exposure                                                                                                            outstanding Swing Line Loans at such time.  The Swing Line Exposure of any Revolving Credit         SPV                                          Section 9.04(i).                                       Lender at any time shall be the sum of (a) its Pro Rata Share of the total Swing Line Exposure at                                                                                                             such time related to Swing Line Loans other than any Swing Line Loans made by such Lender in         SPV Register                                         Section 9.04(i).                               its capacity as a Swing Line Lender and (b) if such  Lender shall be a Swing Line Lender, the                                                                                                             principal amount of all Swing Line Loans made by such Lender outstanding at such time (to the         Submitted  Amount                                                  Section                                                                                                             extent that the other Revolving Credit Lenders shall not have funded their participations in such  2.12(c)(iii)(A).                                                                                                             Swing Line Loans); provided that in the case of Section 2.01(b), clause (y) of the proviso to Section         Submitted  Discount                                                Section                          2.26(a)(i) and clause (iii) of the proviso to Section 2.27(a) when a Defaulting Lender shall exist,  2.12(c)(iii)(A).                                                                                           the Swing Line Exposure of any Revolving Credit Lender shall be adjusted to give effect to any                                                                                                             reallocation effected in accordance with Section 2.25(c).         Subsidiary Revolver Borrower                                            d                                                                                                                    Swing Line Lender                    capacity as a provider of Swing Line Loans                                                                                                             or any successor swing line lender hereunder.  accordance with and subject to the conditions in Section 1.10(e) hereof.                                                                                                                    Swing Line Loan                                         Section 2.27(a).         Subsidiary Revolver Borrower Joinder                                                                                                                   Swing  Line  Loan  Notice                                          Section  Section 1.10.                                                                                                             2.27(b).         Swap Contract           (a) any and all rate swap transactions, basis swaps, credit                                                                                                                    Swing  Line  Obligations                                       the  aggregate  derivative transactions, forward rate transactions, commodity swaps, commodity options, forward                                                                                                             Outstanding Amount of all Swing Line Loans.  commodity contracts, equity or equity index swaps or options, bond or bond price or bond index  swaps  or  options  or  forward  bond  or  forward  bond  price  or  forward  bond  index  transactions,          Swing Line Sublimit                                     (a) $50,000,000 (as  interest rate options, forward foreign exchange transactions, cap transactions, floor transactions,        may  be adjusted  pursuant  to  Section  2.27)  and (b) the  aggregate  amount  of  the Participating  collar transactions, currency swap transactions, cross-currency rate swap transactions, currency           Revolving Credit Commitments.  The Swing Line Sublimit is part of, and not in addition to, the  options, spot contracts, or any other similar transactions or any combination of any of the foregoing      Participating Revolving Credit Commitments.  (including any options to enter into any of the foregoing), whether or not any such transaction is  governed by or subject to any master agreement, and (b) any and all transactions of any kind, and                 Target                                         the related confirmations, which are subject to the terms and conditions of, or governed by, any  form of master agreement published by the International Swaps and Derivatives Association, Inc.,                  Target Group                                     any International Foreign Exchange Master Agreement, or any other master agreement (any such                                          48                                                                                                         49  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       Tax Deduction                                                                                              Treasury Services Provider         (a)  each  Person  that  is  a  counterparty  to any  Taxes or Other Taxes from a payment under a Loan Document.                                                 Treasury Services Agreement as of the Closing Date and/or (b) each Person that is an Agent or                                                                                                             Lender or any Affiliate of an Agent or Lender counterparty to a Treasury Services Agreement         Taxes      mean any and all present or future taxes, levies, imposts, duties, deductions,           (including any Person who was an Agent or Lender (or any Affiliate thereof) as of the Closing  charges  or  withholdings  (including  backup  withholdings),  assessments,  fees  or  other  charges      Date or the date it enters into such Treasury Services Agreement but subsequently ceases to be an  imposed by any Governmental Authority, including any interest, penalties and additions to tax              Agent or Lender (or Affiliate thereof)) and/or (c) any other Person from time to time designated  related thereto.                                                                                           in writing by the Borrower and approved in writing by the Administrative Agent (which approval                                                                                                             shall not be unreasonably withheld, conditioned or delayed); provided that, if such Person is not         Term Borrowing                                                                                      an Agent, Lead Arranger or a Lender, such Person executes and delivers to the Administrative  same Type and, in the case of Eurodollar Loans, having the same Interest Period, made by each of           Agent and the Borrower a letter agreement in form and substance reasonably acceptable to the  the Term Lenders pursuant to Section 2.01(a).                                                              Administrative  Agent  and  the  Borrower  pursuant  to  which  such  Person  (i)  appoints  the                                                                                                             Administrative Agent as its agent under the applicable Loan Documents and (ii) agrees to be bound         Term Commitment                                                                                     by the provisions applicable to Hedge Counterparties and/or Treasury Services Providers in the  Loans to the Borrower as such commitment may be (a) reduced from time to time pursuant to                  applicable Loan Documents.  Section 2.09 and (b) reduced or increased from time to time pursuant to (i) assignments by or to  such  Term  Lender  pursuant  to  an  Assignment  and  Assumption,  (ii)  an  Incremental  Loan                   Type Assumption Agreement, (iii) a Refinancing Amendment or (iv) an Extension Amendment.  The                   to which interest on such Loan or on the Loans comprising such Borrowing is determined.  For                               mmitment is set forth in Schedule 2.01 or in the Assignment                   pur                                                                               and  Assumption,  Incremental  Loan  Assumption  Agreement,  Extension  Amendment  or  Refinancing  Amendment  pursuant  to  which  such  Lender  shall  have  assumed,  increased  or                   UCC                                                                   decreased its Term Commitment, as the case may be.                                                                                                                    U.K. Loan Party                    -U.S. Loan Party incorporated under the laws         Term  Facilities                                                                                    of England and Wales.  including, without limitation, the Initial Term Loan Facility.                                                                                                                    U.S.  Loan  Parties        Term Lender                                                                                         incorporated or established and/or having its registered office in the United States, any state thereof  Term Loan at such time.                                                                                    or the District of Columbia.          Term Loans                                                                                                 U.S. Person Loans, Extended Term Loans, or Refinancing Term Loans, as the context may require.                         7701(a)(30) of the Code.          Test Period                                                                                                U.S. Pledge and Security Agreement consecutive fiscal quarters of the Borrower most recently ended as of such date of determination           made by the Loan Parties party thereto in favor of the Administrative Agent and the other Secured  for which the financial statements set forth in Section 4.10(a)(1) and (2) of Annex I shall have           Parties, substantially in the form of Exhibit F-2 hereto, or in another form reasonably satisfactory  been delivered (or were required to be delivered) to the Administrative Agent.                             to the Administrative Agent and the Borrower.          Total Outstandings                        tstanding Amount of all Loans and all                            U.S.  Pledge  and  Security  Agreement  Supplement L/C Obligations.                                                                                           substantially in the form of Annex I to the U.S. Pledge and Security Agreement, or in another form                                                                                                             reasonably  satisfactory  to  the  Administrative  Agent  and  the  Borrower,  pursuant  to  which  a         Treasury Services Agreement                                                                         Subsidiary becomes a party to, and bound by, the terms of the U.S. Pledge and Security Agreement.  Restricted Subsidiary and any Treasury Services Provider relating to treasury, depository, credit  card,  debit  card  and  cash  management  services  (including  controlled  disbursement,  overdraft,            U.S. Tax Compliance Certificate                      Section 2.20.  automatic clearing house fund transfer services, return items and interstate depository network  services), or foreign exchange, netting and currency management services or, in each case, any                    Unreimbursed  Amount                                               Section  similar services.                                                                                          2.26(c)(i).                                           50                                                                                                         51  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






       USA PATRIOT Act                                   ening America by Providing                        conformity with, and all financial data (including financial ratios and other financial calculations)  Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L.           required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP;  No. 107-56 (signed into law October 26, 2001)).                                                            provided, however, that if the Borrower notifies the Administrative Agent that the Borrower wishes                                                                                                             to amend any calculation or any related definition to eliminate the effect of any changes in GAAP         Weighted  Average  Life  to  Maturity mean,  when  applied  to  any  Indebtedness,                  (it being understood that for purposes of this proviso, any change in GAAP includes the application  Disqualified Stock or Preferred Stock, as the case may be, at any date, the number of years obtained       of IFRS in lieu of GAAP pursuant                        Section 1.01) occurring after  by dividing  (a) the sum of the products  obtained by multiplying  (i) the amount of each then             the date of this Agreement on the operation of such covenant (or if the Administrative Agent  remaining  scheduled  installment,  sinking  fund,  serial  maturity  or  other  required  scheduled       notifies the  Borrower that the Required  Lenders wish  to amend  any calculation  or any related  payments of principal, including payment at final scheduled maturity, in respect thereof, by (ii) the  number of years (calculated to the nearest one-twelfth) that will elapse between such date and the         of GAAP in effect immediately before the relevant change in GAAP became effective, until either  making of such payment, by  (b) the then outstanding principal amount of such Indebtedness,                such notice is withdrawn or such covenant or definition is amended in a manner satisfactory to the  Disqualified Stock or Preferred Stock; provided that for purposes of determining the Weighted              Borrower and the Required Lenders.  Neither this Agreement, nor any other Loan Document nor  Average  Life  to  Maturity  of  any  Indebtedness,  Disqualified  Stock  or  Preferred  Stock  (the       any  other  agreement,  document  or  instrument  referred  to  herein  or  executed  and  delivered  in   Applicable  Indebtedness                                                                                  connection herewith shall be construed against any Person as the principal draftsperson hereof or  Applicable Indebtedness prior to the date of determination shall be disregarded.                           thereof.  For purposes of determining any financial ratio or making any financial calculation for                                                                                                             any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such         Withdrawal Event        (a) the withdrawal of any Participating Member State from                   financial ratio or financial calculation shall be determined on a pro forma basis to give effect to  the single currency of the Participating Member States; (b) the redenomination of the Euro into            the Transactions as if they had occurred at the beginning of such four-quarter period; and each  any other currency by the government of any current or former Participating Member State; and/or           Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be  (c) the withdrawal (or any vote or referendum electing to withdraw) of any member state from the           a  Restricted  Subsidiary  for  purposes  of  the  components  of  such  financial  ratio  or  financial  European Union.                                                                                            calculation as of the beginning of such four-quarter period.  For purposes of the definition of          Write-Down and Conversion Powers                                                                    Obligations will be, at the time any determination is to be made, the amount of such obligation  the  write-down  and  conversion  powers  of  such  Resolution  Authority  from  time  to  time  under     that would have been required to be capitalized on a balance sheet (excluding any notes thereto)  applicable Bail-In Legislation or any similar or analogous powers under the applicable Bail-In             prepared in accordance with GAAP. Without prejudice to the generality of any provision of this  Legislation.                                                                                               Agreement, in this Agreement where it relates to a Luxembourg Loan Party, a reference to: (a) a                                                                                                             winding-up,  administration  or  dissolution  includes,  without  limitation,  bankruptcy  (faillite),        SECTION 1.02       Terms  Generally.   The  definitions  in  Section  1.01  shall  apply                                                                                                             insolvency, liquidation, composition with creditors (concordat préventif de faillite), moratorium  equally to both the singular and plural forms of the terms defined.  Whenever the context may                                                                                                             or  reprieve  from  payment  (sursis  de  paiement),  controlled  management  (gestion  controlee),  require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The                                                                                                             fraudulent  conveyance  (action  paulienne),  general  settlement  with  creditors, reorganization  or                                                 deemed  to  be  followed  by  the  phrase                                                                                                             similar  laws  affecting the  rights  of  creditors  generally;  (b)  a  receiver,  administrative  receiver,                                                                                                             administrator,  trustee,  custodian,  sequestrator,  conservator  or  similar  officer  includes,  without                                                                                                             limitation, a juge délégué, commissaire, juge-commissaire, mandataire ad hoc, administrateur  meaning  and  effect  and  to  refer  to  any  and  all  tangible  and  intangible  assets  and  properties,                                                                                                             provisoire, liquidateur or  curateur;  (c)  a  lien  or  security  interest  includes  any hypothèque,  including cash, securities, accounts and contract rights.  Any reference to any law, code, statute,                                                                                                             nantissement, gage, privilege, sûreté réelle, droit de rétention, and any type of security in rem  treaty, rule, guideline, regulation or ordinance of a Governmental Authority shall, unless otherwise                                                                                                             (sûreté réelle) or agreement or arrangement having a similar effect and any transfer of title by way  specified,  refer  to  such  law,  code,  statute,  treaty,  rule,  guideline,  regulation  or  ordinance  as                                                                                                             of security; (d) a person being unable to pay its debts includes that person being a state of cessation  amended, supplemented or otherwise modified from time to time.  Any reference to any IRS form                                                                                                             de  paiements;  (e)  creditors  process  means  an  executory  attachment  (saisie  exécutoire)  or  shall be construed to include any successor form.  All references herein to Articles, Sections,                                                                                                             conservatory  attachment  (saisie  conservatoire);  (f)  a  guaranty  includes  any  guaranty  which  is  Annexes, Exhibits and Schedules shall be deemed references to Articles and Sections of, and                                                                                                             independent from the debt to which it relates and excludes any suretyship (cautionnement) within  Annexes, Exhibits and Schedules to, this Agreement unless the context shall otherwise require.                                                                                                              the  meaning  of  Articles  2011  and  seq.  of  the  Luxembourg  Civil  Code;  and  (g)  constitutional  Except as otherwise expressly provided herein, (a) any reference in this Agreement to any Loan                                                                                                             documents includes its up-to-date (restated) articles of association (statuts coordonnés).  Document or other agreement, document or instrument shall mean such agreement, document or  instrument as amended, restated, supplemented, replaced, refinanced or otherwise modified from                   SECTION 1.03      Classification  of  Loans  and  Borrowings.   For  purposes  of  this  time to time, in each case, (if applicable) in accordance with the express terms of this Agreement,  and (b) all accounting terms not specifically or completely defined herein shall be construed in                                          52                                                                                                         53  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






cl                                                                                                         have been exceeded as a result of such fluctuations.  If the Borrower has made an LCT Election                                                                                                             for any Limited Condition Transaction, then in connection with any subsequent calculation of any                                                                                                             ratio or basket availability with respect to the Incurrence of Indebtedness or Liens or the making        SECTION 1.04       Cashless Roll.  Notwithstanding anything to the contrary contained                of Asset Dispositions, mergers, the conveyance, lease or other transfer of all or substantially all of  in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in          the assets of the Borrower or the designation of an Unrestricted Subsidiary or the making of  connection with any refinancing, extension, loan modification or similar transaction permitted by          Investments or Restricted Payments on or following the relevant LCT Test Date and prior to the  the  terms  of  this  Agreement,  pursuant  to  a  cashless  settlement  mechanism  approved  by  the      earlier of the date on which such Limited Condition Transaction is consummated or the definitive  Borrower, the Administrative Agent or the Additional Arranger, as the case may be, and such                agreement  or  irrevocable  notice,  as  applicable,  for  such  Limited  Condition  Transaction  is  Lender.                                                                                                    terminated or expires without consummation of such Limited Condition Transaction, any such                                                                                                             ratio  or  basket  shall  be  calculated  on  a  pro  forma  basis  assuming  such  Limited  Condition        SECTION 1.05       Limited Condition Transaction.  (a) In connection with any action                 Transaction  and  other  transactions  in  connection  therewith  (including  any  Incurrence  of  being  taken  in  connection  with  a  Limited  Condition  Transaction,  for  purposes  of  determining    Indebtedness and the use of proceeds thereof) have been consummated.  compliance with any provision of this Agreement which requires that no Default, Event of Default  or Specified Event of Default, as applicable, has occurred, is continuing or would result from any               SECTION 1.06      Letters of Credit.  Unless otherwise specified herein, the amount of  such action, as applicable, such condition shall, at the option of the Borrower, be deemed satisfied,      a Letter of Credit at any time shall be deemed to be the amount of the stated amount of such Letter  so long as no Default, Event of Default or Specified Event of Default, as applicable, exists on the        of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that,  date the definitive agreements or irrevocable notice, as applicable, for such Limited Condition            by  its  terms  or  the  terms  of  any  Issuer  Document  related  thereto,  provides  for  one  or  more  Transaction are entered into or has been delivered, as applicable.  For the avoidance of doubt, if         automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be  the Borrower has exercised its option under the first sentence of this clause (a), and any Default,        deemed to be the amount of the maximum stated amount of such Letter of Credit after giving effect  Event of Default or Specified Event of Default occurs following the date the definitive agreements         to all such increases, whether or not such maximum stated amount is in effect at such time.  or irrevocable notice, as applicable, for the applicable Limited Condition Transaction were entered  into or has been delivered, as applicable, and prior to the consummation of such Limited Condition               SECTION 1.07      LIBO  Rate  Discontinuation.   Notwithstanding  anything  to  the  Transaction, any such Default, Event of Default or Specified Event of Default shall be deemed to           contrary  contained in this  Agreement  or the other  Loan Documents, if the LIBO Rate is not  not have occurred or be continuing for purposes of determining whether any action being taken in           available at any time for any reason (including that adequate and reasonable means do not exist  connection with such Limited Condition Transaction is permitted hereunder.                                 for ascertaining the LIBO Rate for any requested Interest Period, including because the applicable                                                                                                             screen rate is not available or published on a current basis and such circumstances are unlikely to        (a)    In connection with any action being taken in connection with a Limited Condition              be temporary), as reasonably determined by the Borrower and the Administrative Agent, then the  Transaction, for purposes of (x) determining compliance with any provision of this Agreement                                                       (a) a successor or alternative index rate as the  which  requires  the  calculation  of  the  Consolidated  Net  Senior  Secured  Leverage  Ratio  or        Administrative Agent (but not, for the avoidance of doubt, any other Lender) and the Borrower  Consolidated Net Leverage Ratio; or (y) testing baskets set forth in this Agreement (including             may  reasonably  determine  or  (b)  absent  such  mutual  selection  by  the  Borrower  and  the  baskets measured as a percentage of Pro Forma EBITDA); in each case, at the option of the                  Administrative Agent, a comparable successor or alternative interbank rate for deposits in dollars                                                                                                             that is, at such time, broadly accepted as the prevailing market practice for syndicated leveraged                         LCT Election is permitted hereunder, shall be deemed to be the date the definitive agreements or irrevocable            Agent, in each case pursuant to an amendment to this Agreement and each other applicable Loan  notice,  as  applicable,  for  such  Limited  Condition  Transaction  are  entered  into  or  has  been    Document,  in each  case  among  the  Borrower  and  the Administrative  Agent  (but  not, for the                           LCT Test Date                                                                     avoidance of doubt, any Lender) that will become effective at 5:00 p.m., New York City time, on  Condition  Transaction  and  the  other  transactions  to  be  entered  into  in  connection  therewith    the fifth Business Day after the Administrative Agent shall have posted such proposed amendment  (including any Incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred         to the Lenders in respect of the Loans or Commitments of all similarly and directly affected Classes  at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCT Test          unless, prior to such time, the Required Lenders in respect of all such affected Classes (acting  Date for which consolidated financial statements of the Borrower are available, the Borrower could         together as one Class) have delivered to the Administrative Agent written notice that such Lenders  have taken such action on the relevant LCT Test Date in compliance with such ratio or basket,              do  not  accept  such  amendment  (which  such  notice  shall  note  with  specificity  the  particular  such ratio or basket shall be deemed to have been complied with.  For the avoidance of doubt, if           provisions of the amendment to which such Lenders object); provided that (i) any such successor  the Borrower has made an LCT Election and any of the ratios or baskets for which compliance                or alternative rate shall be applied by the Administrative Agent in a manner consistent with market  was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any           practice, (ii) if such successor or alternative rate shall be less than zero, such rate shall be deemed  such  ratio  or  basket,  including  due  to  fluctuations  in  Pro  Forma  EBITDA  at  or  prior  to  the to be zero for the purposes of this Agreement and (iii) to the extent such market practice is not  consummation of the relevant transaction or action, such baskets or ratios will not be deemed to           administratively feasible for the Administrative Agent, such successor or alternative rate shall be                                         54                                                                                                         55  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






applied  in  a  manner  as  otherwise  reasonably  determined  by  the  Administrative  Agent  in                  and the Revolving Credit Lenders as required by regulatory authorities to comply with  consultation with the Borrower; provided further that, (i) if no such successor LIBO Rate is able                  their obligations under applicable   your         and  anti-money  laundering  to be reasonably determined in accordance with the foregoing proviso (or pending the resolution                    rules  and  regulations,  including  the  PATRIOT  Act  and  the  Beneficial  Ownership  of any such determination) and the circumstances described in such proviso continue to exist, then                 Regulation and (B) to the extent that the Subsidiary Revolver Borrower qualifies as a  the Administrative Agent will promptly so notify the Borrower and the applicable Lenders, after  (or during, as applicable) which time the provisions of Section 2.08 shall control with respect to                 Ownership Certification.    such applicable Classes of Loans and Commitments and (ii) the Administrative Agent does not  warrant  or  accept  any  responsibility  for,  and shall  not  have  any  liability  with  respect  to,  the    (b)   Upon effectiveness of the appointment provided hereby, the Subsidiary Revolver  administration, submission or any other matter related to the London interbank offered rate or other       Borrower will have the right to request Revolving Credit Loans, Swing Line Loans or Letters of                                                                                                             Credit  in  accordance  with  Article  II hereof   on  any  Business Day  during  the  period  from  and  or  replacement  rate  thereof,  including  without  limitation,  whether  the  composition  or            including the Initial Funding Date until the Initial Revolving Credit Commitment Maturity Date.    characteristics of any such alternative, successor or replacement reference rate will be similar to,  or produce the same value or economic equivalence of, the LIBO Rate or have the same volume                      (c)   Without limitation of the obligations of the Subsidiary Revolver Borrower and the  or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.       Borrower under the Facility Guaranty, the Subsidiary Revolver Borrower and the Administrative                                                                                                              Borrower hereby accept joint and several liability hereunder with respect to the Obligations under        SECTION 1.08       [Reserved.]                                                                       the Revolving Credit Facilities, including with respect to the payment of principal of and interest                                                                                                             on all Revolving Credit Loans and Swing Line Loans under the Revolving Credit Facilities, the        SECTION 1.09       Agreed  Security  Principles.   Each  Loan  Guarantee,  Security                  payment of amounts owing in respect of Letters of Credit and, in each case, the payment of fees  Document and each other guaranty and security document delivered or to be delivered under this             and indemnities and reimbursement of costs and expenses related thereto.  Agreement and any obligation to enter into such document or obligation by any Non-U.S. Loan  Party or by any U.S. Loan Party with respect to Collateral located outside the United States, any                (d)   The  Subsidiary  Revolver  Borrower  hereby  designates  and  appoints  the  state thereof or the District of Columbia, shall be subject in all respects to the Agreed Security         Administrative Borrower as its agent, attorney in fact and legal representative on its behalf for all  Principles.                                                                                                purposes,  including  issuing  Borrowing  Requests,  delivering  compliance  certificates,  giving                                                                                                             instructions with respect to the disbursement of the proceeds of the Revolving Credit Loans and        SECTION 1.10       Subsidiary Revolver Borrower.                                                     Swing  Line  Loans,  paying,  prepaying  and  reducing  Revolving  Credit  Loans  and  Swing  Line                                                                                                             Loans, Revolving Credit Commitments or any other amounts owing under the Loan Documents;        (a)    The Subsidiary Revolver Borrower shall become a borrower under the Revolving                  selecting interest rate options, giving, receiving, accepting and rejecting all other notices, service  Credit Facilities effective upon satisfaction of the following conditions:                                 of process, consents or other communications hereunder or under any of the other Loan Documents                                                                                                             and taking all other actions (including in respect of compliance with covenants) on behalf of the                 (i)   the  Subsidiary  Revolver  Borrower  shall  have  delivered  to  the                  Subsidiary Revolver Borrower under the Loan Documents. The Administrative Borrower hereby           Administrative Agent a duly  authorized, executed and delivered counterpart signature             accepts such appointment. The Administrative Agent and each Lender may regard any notice or           page  to  a  joinder  agreement  in  form  and  substance  reasonably  satisfactory  to  the      other communication pursuant to any Loan Document from the Administrative Borrower on behalf           Borrower and the Administrative Agent pursuant  to  which the Subsidiary Revolver                 of the Subsidiary Revolver Borrower as a notice or communication from both the Administrative           Borrower  is  joined  to  this  Agreement  as  the  Subsidiary  Revolver  Borrower  (the          Borrower and  the Subsidiary Revolver  Borrower and  any  action  taken  by  the  Administrative            Subsidiary Revolver Borrower Joinder                                                             Borrower in its capacity as representative of the Subsidiary Revolver Borrower shall be deemed                                                                                                             to have been taken by the Subsidiary Revolver Borrower directly.                 (ii)  the Subsidiary Revolver Borrower, if not already a Loan Party hereunder,           shall  have  delivered  to  the  Administrative  Agent  and  Collateral  Agent,  executed               (e)   The  Subsidiary  Revolver  Borrower  may  resign  as  the  Subsidiary  Revolver           counterparts of a joinder or supplement to the applicable Loan Documents  pursuant  to            Borrower by delivering to the Administ          Section  5.14  in  accordance  with  the  terms  thereof,  together  with  the  other             notice thereof so long as (i) the Revolving Credit Loans (including Swing Line Loans) and all           deliverables  required pursuant to Section 5.14; and                                              other principal, interest, fees and other amounts and obligations due of the Subsidiary Revolver                                                                                                             Borrower  have  been paid  in  full  and (ii)  any  Letters  of  Credit  issued  for  the  account of the                 (iii) the Administrative Agent, the Collateral Agent and the Revolving Credit               Subsidiary Revolver Borrower have been terminated (unless the Outstanding Amount of the L/C           Lenders shall  have  received,  at least three (3) Business Days prior to  the Subsidiary         Obligations  related thereto has  been Cash Collateralized  or back-stopped by  a  letter of credit           Revolver  Borrower  becoming  the  Subsidiary  Revolver  Borrower,  (A)   all                     reasonably  satisfactory to the  applicable  L/C  Issuer  or  such  Letter  of  Credit  has been  deemed           documentation and other information about such  Subsidiary Revolver Borrower as has           been reasonably requested in writing by the Administrative Agent, the Collateral Agent                                         56                                                                                                         57  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






reissued for the account of the Administrative Borrower, as agreed between the Administrative                    SECTION 2.02      Loans.  Each Loan shall be made as part of a Borrowing consisting  Borrower and the applicable L/C Issuer (acting reasonably)).                                               of Loans made by the Lenders ratably in accordance with their applicable Commitments; provided,                                                                                                             however, that the failure of any Lender to make any Loan shall not in itself relieve any other                                     ARTICLE II                                                              Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be                                                                                                             responsible for the failure of any other Lender to make any Loan required to be made by such other                                   THE CREDITS                                                               Lender).  The Loans comprising any Borrowing shall be in an aggregate principal amount that is                                                                                                             (a) an integral multiple of $1,000,000 and not less than $5,000,000 (except to the extent otherwise        SECTION 2.01       Commitments.  (a) Subject to the terms and conditions set forth                   provided in an Incremental Loan Assumption Agreement, Refinancing Amendment or Extension  herein and relying upon the representations and warranties set forth herein, each Lender having an         Amendment) or (b) equal to the remaining available balance of the applicable Commitments.  Initial Term Loan Commitment agrees, severally and not jointly, to make Loans to the Borrower  denominated in Dollars in up to two draws, (i) initially, on the Initial Funding Date, in an aggregate           (a)   Each Lender may at its option make any Eurodollar Loan by causing any domestic  principal amount not to exceed its pro rata              Initial Draw Term Loans                           or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of  and (ii) on the Delayed Draw Funding Date, in an aggregate principal amount not to exceed its pro          such option shall not affect the obligation of the Borrower to repay such Loan in accordance with                             Delayed Draw Term Loans                                                         the terms of this Agreement.  The Borrower shall not be entitled to request any Borrowing that, if  together with the In                    Initial Term Loans                                                 made, would result in more than 20 Eurodollar Borrowings outstanding hereunder at any time.  For  in respect of the Initial Term Loans may not be reborrowed.                                                purposes of the foregoing,  Borrowings having  different Interest Periods,  regardless  of whether                                                                                                             they commence on the same date, shall be considered separate Borrowings.        (a)    Subject  to  the  terms  and  conditions  set  forth  herein,  and  relying  upon  the  representations and warranties set forth herein, each Lender having an Initial Revolving Credit                  (b)   Each Lender shall make each Loan to be made by it hereunder on the Initial Funding  Commitment agrees, severally and not jointly, to make Revolving Credit Loans denominated in                Date, the Delayed Draw Funding Date or the proposed date of Borrowing thereof, as applicable,  Dollars to the Borrower from time to time, on any Business Day during the period from and                  or by wire transfer of immediately available funds in Dollars, as the case may be, to such account  including the Initial Funding Date until the Initial Revolving Credit Commitment Maturity Date,            in New York City as the Administrative Agent may designate in advance, not later than 2:00 p.m.,  in an aggregate outstanding amount not to exceed at any time the amount of the Initial Revolving           New York City time (or 9:30 a.m. New York City time in the case of the Initial Funding Date or  Credit Commitment; provided that on or prior to the Closing Date the aggregate Outstanding                 the Delayed Draw Funding Date), and the Administrative Agent shall promptly wire transfer the  Amount  of  Revolving  Credit  Loans  shall  not  exceed  the  Closing  Date  Revolving  Available         amounts so received in accordance with instructions received from the Borrower in the applicable  Amount; provided, further, that after giving effect to any Revolving Credit Borrowing (and the             Borrowing Request or, if a Borrowing shall not occur on such date because any condition precedent  application  of  proceeds  thereof  pursuant  to  Section  2.11(a)(iv)),  the  aggregate  Outstanding      herein specified shall not have been met, return the amounts so received to the respective Lenders.                                                                                                                    (c)   Unless the Administrative Agent shall have received notice from a Lender prior to  (the Revolving Credit Loans made pursuant to this Section 2.01(b) Initial Revolving                        the date of any Borrowing that such Lender will not make available to the Administrative Agent  Credit  Loans                                                                                                                                                                that such Lender  Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow,                 has made such portion available to the Administrative Agent on the date of such Borrowing in  prepay and reborrow Revolving Credit Loans.  Revolving Credit Loans may be ABR Loans or                    accordance with this Section 2.02(c) and the Administrative Agent may, in reliance upon such  Eurodollar Loans as further provided herein.                                                               assumption,  make  available  to  the  Borrower  on  such  date  a  corresponding  amount.   If  the                                                                                                             Administrative Agent shall have so made funds available then, to the extent that such Lender shall        (b)    Subject to the terms and conditions set forth in any Incremental Loan Assumption              not have made such portion available to the Administrative Agent, such Lender and the Borrower  Agreement,  Refinancing  Amendment  or  Extension  Amendment,  as  applicable,  each  Lender               severally  agree  to  repay to the Administrative Agent forthwith on demand such corresponding  having an Incremental Loan Commitment, Refinancing Commitment or extending its Original                    amount together with interest thereon, for each day from the date such amount is made available  Term Loans or Original Revolving Credit Commitments, as the case may be, severally and not                 to the Borrower to but excluding the date such amount is repaid to the Administrative Agent at  jointly, hereby agrees, subject to the terms and conditions and relying upon the representations and       (i) in the case of the Borrower, a rate per annum equal to the interest rate applicable at the time to  warranties  set  forth  in  the  applicable  Incremental  Loan  Assumption  Agreement,  Refinancing        the Loans comprising such Borrowing and (ii) in the case of such Lender, a rate determined by the  Amendment  or  Extension  Amendment,  to  make  Incremental  Loans,  Refinancing  Loans  or                Administrative Agent to represent its cost of overnight or short-term funds (which determination  Extended  Term  Loans  or  Extended  Revolving  Credit  Commitments,  as  applicable,   to  the            shall be conclusive absent manifest error).  If such Lender shall repay to the Administrative Agent  Borrower, in an aggregate principal amount not to exceed, as applicable, its Incremental Loan  Commitment, Refinancing Commitment, Original Revolving Credit Commitments or aggregate                     Borrowing for purposes of this Agreement.  principal amount of Original Term Loans, as applicable.                                          58                                                                                                         59  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






      SECTION 2.03       Borrowing Procedure.  In order to request a Term Loan Borrowing                         (c)   In addition to the accounts and records referred to in Section 2.04(a) and (b), each  or a Revolving Credit Borrowing, the Borrower shall notify the Administrative Agent of such                Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts  request by telephone not later than 12:00 p.m., New York time, (a) one Business Day before a               or records and, in the case of the Administrative Agent, entries in the Register, evidencing the  proposed Borrowing of Eurodollar Loans on the Initial Funding Date or the Delayed Draw Funding             purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans.   Date and (b) three Business Days before a proposed Borrowing of Eurodollar Loans on any other              In the event of any conflict between the accounts and records maintained by the Administrative  date (or, in each case, such shorter period as may be agreed by the Administrative Agent) and no           Agent and the accounts and records of any Lender in respect of such matters, the Register shall  later  than  12:00  p.m.,  New  York  time,  on  the  Business  Day  before  the  date  of  a  proposed    control in the absence of manifest error.  Borrowing in the case of a Borrowing of ABR Loans.  Each such telephonic Borrowing Request  shall  be  irrevocable,  and  shall  be  confirmed  promptly  by  hand  delivery,  e-mail  or  fax  to  the      (d)   The entries made in the Register maintained pursuant to Section 2.04(b) and (c)  Administrative Agent of a written Borrowing Request and shall specify the following information:           shall be prima facie evidence of the existence and amounts of the obligations therein recorded;  (i) whether the Borrowing then being requested is to be a Borrowing of Term Loans, Revolving               provided, however, that the failure of any Lender or the Administrative Agent to maintain such  Credit Loans, Incremental Term Loans or Incremental Revolving Credit Loans; (ii) the date of               accounts  or  any  error  therein  shall  not  in  any  manner  affect  the  obligations  of  the  applicable  such Borrowing (which shall be a Business Day); (iii) the number and location of the account to            Borrower to repay the Loans in accordance with their terms.  which funds are to be disbursed; (iv) the amount of such Borrowing  (stated in the Available  Currency); and (v) whether the Loans being made pursuant to such Borrowings are to be initially                  (e)   Any  Lender  may  request  that  Loans  made  by  it  hereunder  be  evidenced  by  a  maintained as ABR Loans or Eurodollar Loans and, if Eurodollar Loans, the Interest Period with             promissory  note.   In  such  event,  the  Borrowers  shall  execute  and  deliver  to  such  Lender  a  respect  thereto  (provided  that,  the  Borrower  shall  not  be  permitted  to  request  a  Eurodollar   promissory note payable to such Lender and its registered assigns and in the form attached hereto  Borrowing  with  an  Interest  Period  in  excess  of one  month  until  the  earlier  of  (x) the  date  the as Exhibit G.  Notwithstanding any other provision of this Agreement, in the event any Lender  Administrative Agent shall have notified the Borrower that the primary syndication of the Loans            shall request and receive such a promissory note, the interests represented by such note shall at all  has been completed (which notice shall be given as promptly as practicable) and (y) the date that          times thereafter (including after any assignment of all or part of such interests pursuant to Section  is  30  days  after  the  Closing  Date); provided,  however,  that the  initial  Interest  Period of any  9.04) be represented by one or more promissory notes payable to the payee named therein or its  Eurodollar Borrowing made on the Initial Funding Date or the Delayed Draw Funding Date shall               registered assigns.  end on a date reasonably satisfactory to the Administrative Agent specified by the Borrower in  such Borrowing Request; provided, however, that, notwithstanding any contrary specification in                   SECTION 2.05      Fees.  (a) Each Borrower agrees to pay (i) to the Administrative  any Borrowing Request, each requested Borrowing shall comply with the requirements set forth               Agent, for its own account, the administrative fees as are separately agreed by the Administrative  in Section 2.02.  If no Interest Period with respect to any Eurodollar Borrowing is specified in any       Agent in accordance with the Agent Fee Letter and (ii) all  fees required to be paid on the Closing                                                                                                             Date pursuant to the Arranger Fee Letter in accordance with the Arranger Fee Letter.  duration.  The Administrative Agent shall promptly advise the applicable Lenders of any notice                                                                                                                   (a)   Each Borrower agrees to pay to the Administrative Agent for the account of each  given pursuant to this Section 2.03                                                                                                             Revolving Credit Lender under each Class of Revolving Credit Commitments in accordance with  requested Borrowing.                                                                                                             its  Pro  Rata  Share,  a  commitment  fee  equal  to  the  Applicable  Revolving  Commitment  Fee        SECTION 2.04       Evidence of  Debt; Repayment  of  Loans.  Each  Borrower hereby                   Percentage times the actual daily amount by which the aggregate Revolving Credit Commitment  unconditionally promises to pay to the Administrative Agent for the account of each Lender the             for the applicable Class of Revolving Credit Commitments exceeds the sum of (i) the Outstanding  principal amount of each Loan of such Lender as provided in Section 2.11.                                  Amount of Revolving Credit Loans for such Class of Revolving Credit Commitments and (ii) the                                                                                                             Outstanding  Amount  of  L/C  Obligations  for  such  Class  of  Revolving  Credit  Commitments;        (a)    Each  Lender  shall  maintain  in  accordance  with  its  usual  practice  an  account  or    provided that any commitment fee accrued with respect to any of the Commitments of a Defaulting  accounts evidencing the indebtedness of such Borrower to such Lender resulting from each Loan              Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at  made by such Lender from time to time, including the amounts of principal and interest payable             such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender  and paid to such Lender from time to time under this Agreement.                                            except to the extent that such commitment fee shall otherwise have been due and payable by the                                                                                                             Borrower prior to such time; and provided, further, that no commitment fee shall accrue on any of        (b)    The Administrative Agent shall maintain the Register in which it will record (i) the          the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.   amount of each Loan made hereunder, the Class and Type thereof and, if applicable, the Interest            The commitment fee on each Class of Revolving Credit Commitments shall accrue at all times  Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become       from the Closing Date until the Maturity Date for such Class of Revolving Credit Commitments,  due and payable from the applicable Borrower to each Lender hereunder and (iii) the amount of              including at any time during which one or more of the conditions in Article IV is not met, and shall  any sum received by the Administrative Agent hereunder from the Borrower or any Guarantor and              be  due  and  payable  in  arrears  on  the  15th  day  of  each  of  April,  July,  October  and  January,                                                                                                             commencing with the first such date during the first full fiscal quarter to occur after the Closing                                          60                                                                                                         61  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






Date, and on the Maturity Date for such Class of Revolving Credit Commitments provided that if                   (c)   All fees under this Section 2.05 shall be paid on the dates due, in immediately  such day is not a Business Day, such commitment fee shall be payable on the next succeeding                available  funds  in  Dollars,  to  the  Administrative  Agent  for  distribution, if  and  as  appropriate,  Business Day.  The commitment fee shall be calculated quarterly in arrears, and if there is any            among the Lenders.  Once paid, no such fees shall be refundable under any circumstances.  change in the Applicable Revolving Commitment Fee Percentage during any quarter, the actual  daily amount shall be computed and multiplied by the Applicable Revolving Commitment Fee                         SECTION 2.06      Interest on Loans.  (a) Subject to the provisions of Section 2.07, the  Percentage  separately  for  each  period  during  such  quarter  that  such  Applicable  Revolving        Loans comprising each ABR Borrowing shall bear interest (computed on the basis of the actual  Commitment Fee Percentage was in effect.                                                                   number of days elapsed over a year of 365 or 366 days, as the case may be, when the Alternate                                                                                                             Base Rate is determined by reference to the Prime Rate and over a year of 360 days at all other        (b)    The Borrower shall pay to the Administrative Agent for the account of each Initial            times and calculated from and including the date of such Borrowing to but excluding the date of                                                              Ticking Fee                                    repayment  thereof)  at  a  rate per  annum equal to the Alternate Base Rate plus the Applicable  on the unutilized Initial Term Loan Commitments of the applicable Lenders for each day, from               Margin.  (and including) the date that all Initial Term Loan Commitments are allocated in syndication (the   Commitment Allocation Date                                                                                      (a)   Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar  applicable percentage set forth below of the Applicable Margin in respect of Eurodollar Loans that         Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a  would otherwise be payable in respect of the Initial Term Loans:                                           year of 360 days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in                                                                                                             effect for such Borrowing plus the Applicable Margin.          Period                                            Applicable Percentage                                   (b)   Interest on each Loan shall be payable on the Interest Payment Dates applicable to                                                                                                             such Loan except as otherwise provided in this Agreement.  The applicable Alternate Base Rate         From the Commitment Allocation Date through the date 0% per annum of                                                                                                             or Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as the case may         that is 30 days following the Commitment Allocation Date Applicable Margin                                                                                                             be, shall be determined by the Administrative Agent, and such determination shall be conclusive         From the date that is 31 days following the Commitment 50% per annum of                             absent manifest error.  Interest shall be paid in the same currency as the Loan to which such interest         Allocation Date through the date that is 60 days following Applicable Margin                        relates.         the Commitment Allocation Date                                                                                                                   SECTION 2.07      Default Interest.  If any Event of Default under Section 7.01(a) or                                                                                                             7.01(g) hereof has occurred and is continuing then, until such defaulted amount shall have been         From the date that is 61 days following the Commitment 100% per annum of                                                                                                             paid in full, to the extent permitted by law, such defaulted amounts shall bear interest (after as well         Allocation Date and thereafter                    Applicable Margin                                                                                                             as  before  judgment),  payable  on  demand,  (a)  in  the  case  of  principal,  at  the  rate  otherwise                                                                                                             applicable to such Loan pursuant to Section 2.06 plus 2.00% per annum, (b) in the case of interest        The  Administrative  Agent  shall  promptly  notify  the  Borrower  of the  occurrence  of  the      payable on any Loan, at the rate otherwise applicable to an ABR Loan of the applicable Class plus  Commitment Allocation Date.  The Ticking Fee will be determined on the basis of a 360-day year             2.00% per annum, and (c) in all other cases, at a rate per annum (computed on the basis of the                                                                Ticking Fee Payment                          actual number of days elapsed over a year of 365 or 366 days, as the case may be, when determined  Date                                                                 (i) the Initial                       by reference to the Prime Rate and over a year of 360 days at all other times) equal to the rate that  Funding Date (solely with respect to $96,000,000 of Initial Term Loan Commitments), (ii) the               would be applicable to an ABR Loan that is an Initial Revolving Credit Loan plus 2.00% per  Delayed  Draw  Funding  Date  (with  respect  to  the  entire  remaining  aggregate  amount  of            annum.  Commitments under the Initial Term Loan Commitments), (iii) the Commitment Termination Date  for such Initial Term Loan Commitments, and (iv) the effective date of any reduction of the Initial              SECTION 2.08      Alternate Rate of Interest.  In the event, and on each occasion, that  Term Loan Commitments solely with respect to the amount so reduced.  Notwithstanding anything              on the day two Business Days prior to the commencement of any Interest Period for a Eurodollar  to the contrary in this Agreement, any Ticking Fee accrued with respect to any of the Commitments          Borrowing the Administrative Agent shall have determined (a) that Dollar deposits in the principal  of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender          amounts  of  the  Loans  comprising such Borrowing  are  not  generally  available  in  the  London  and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a             interbank  market,  (b)  that  the  rates  at  which  such  Dollar  deposits  are  being  offered  will  not  Defaulting Lender except to the extent that such Ticking Fee shall otherwise have been due and             adequately and fairly reflect the cost to the Required Lenders of making or maintaining Eurodollar  payable by the Borrower prior to such time; and provided, further, that no Ticking Fee shall accrue        Loans during such Interest Period or (c) that reasonable means do not exist for ascertaining the  on any of the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting              Adjusted LIBO Rate, the Administrative Agent shall, as soon as practicable thereafter, give written  Lender.                                                                                                    or fax notice of such determination to the Borrowers and the Lenders.  In the event of any such                                                                                                             determination, until the Administrative Agent shall have advised the Borrowers and the Lenders                                                                                                             that the circumstances giving rise to such notice no longer exist, any request by the Borrowers for                                         62                                                                                                         63  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






a Eurodollar Borrowing pursuant to Sections 2.03 or 2.10 shall be deemed to be a request for an                  SECTION 2.10      Conversion and Continuation of Borrowings.  (a) The applicable  ABR Borrowing.  Each determination by the Administrative Agent under this Section 2.08 shall               Borrower shall have the right at any time upon prior irrevocable notice (including by telephone or  be conclusive absent manifest error.                                                                       e-mail, which in the case of telephonic notice, shall be promptly followed by written notice) to the                                                                                                             Administrative Agent (x) not later than 2:00 p.m., New York City time, one Business Day prior to        SECTION 2.09       Termination  or  Reduction  of  Commitments.   (a)  The  Term                     conversion, to convert any Eurodollar Borrowing into an ABR Borrowing, (y) not later than 2:00  Commitments and the Initial Revolving Credit Commitments shall automatically terminate upon                p.m., New York City time, three Business Days prior to conversion or continuation (or such shorter  the  Commitment  Termination  Date  and  any  Incremental  Loan  Commitments,  Refinancing                 period as may be agreed by the Administrative Agent), to convert any ABR Borrowing into a  Commitments,  Extended  Revolving  Credit  Commitments  or  Commitments  with  respect  to                 Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for an  Extended  Term  Loans  shall  terminate  as  provided  in  the  related  Incremental  Assumption           additional Interest Period, and (z) not later than 2:00 p.m., New York City time, three Business  Agreement, Refinancing Amendment or Extension Amendment, as applicable.  The Revolving                     Days prior to conversion (or such shorter period as may be agreed by the Administrative Agent),  Credit  Commitment  of  each  Revolving  Credit  Lender  shall  automatically  terminate  on  the          to convert the Interest Period with respect to any Eurodollar Borrowing to another permissible  Maturity Date for the applicable Class of Revolving Credit Commitments; provided that (x) the              Interest Period, subject in each case to the following:  foregoing shall not release any Revolving Credit Lender from any liability it may have for its  failure to fund Revolving Credit Loans, L/C Advances or participations in Swing Line Loans that                          (i)    each  conversion  or  continuation  shall  be  made pro  rata  among  the  were required to be funded by it on or prior to such Maturity Date and (y) the foregoing will not                  Lenders in accordance with the respective principal amounts of the Loans comprising  release any Revolving Credit Lender from any obligation to fund its portion of L/C Advances or                     the converted or continued Borrowing;  participations in Swing Line Loans with respect to Letters of Credit issued or Swing Line Loans  made prior to such Maturity Date.                                                                                        (ii)   if less than all the outstanding principal amount of any Borrowing shall                                                                                                                     be converted or continued, then each resulting Borrowing shall satisfy the limitations        (a)                                                                                                          specified in Sections 2.02(a) and 2.02(b) regarding the principal amount and maximum  Agent, the Borrower may at any time in whole permanently terminate, or from time to time in part                   number of Borrowings of the relevant Type;  permanently  reduce,  the  unused  Commitments  of  any  Class; provided,  however,  that  (i)  each  partial reduction of Commitments shall be in an integral multiple of $1,000,000 and in a minimum                         (iii)  each conversion shall be effected by each Lender and the Administrative  amount  of  $5,000,000  (or  in  such  lower minimum  amounts  or multiples  as  agreed  to  by  the               Agent  by  recording  for  the  account  of  such  Lender  the  new  Loan  of  such  Lender  Administrative Agent in its reasonable discretion) and (ii) if, after giving effect to any reduction               resulting  from  such  conversion  and  reducing  the  Loan  (or  portion  thereof)  of  such  of Revolving Credit Commitments, the Letter of Credit Sublimit or the Swing  Line Sublimit                         Lender  being  converted  by  an  equivalent  principal  amount;  accrued  interest  on  any  exceeds the amount of the Participating Revolving Credit Commitments, such sublimit shall be                       Eurodollar Loan (or portion thereof) being converted shall be paid by the Borrower at  automatically reduced by the amount of such excess.  Except as provided in the immediately                         the time of conversion;  preceding sentence, the amount of any such Revolving Credit Commitment reduction shall not be  applied to the Letter of Credit Sublimit or the Swing Line Sublimit unless otherwise specified by                        (iv)   if any Eurodollar Borrowing is converted at a time other than the end of  the Borrower.  Any such notice of termination or reduction pursuant to this Section 2.09(b) may                    the  Interest  Period  applicable  thereto,  the  Borrower  shall  pay,  upon  demand,  any  state that it is conditioned upon the occurrence or non-occurrence of any event specified therein                  amounts due to the Lenders pursuant to Section 2.16;  (including the effectiveness of other credit facilities), in which case such notice may be revoked  by the Borrower or the Borrower may delay the date of prepayment identified therein to a later                           (v)    any portion of a Eurodollar or ABR Borrowing maturing or required to  date reasonably acceptable to the Administrative Agent (in each case by written notice to the                      be repaid in less than one month may not be converted into or continued as a Eurodollar  Administrative Agent on or prior to the specified effective date) if such condition is not satisfied               Borrowing;  or the satisfaction of such condition is delayed.                                                                                                                           (vi)   any portion of a Eurodollar Borrowing that cannot be converted into or        (b)    Upon any reduction of unused Commitments of any Class, the Commitment of each                         continued as a Eurodollar Borrowing by reason of the immediately preceding clause  Lender of such Class shall be reduced on a pro rata basis (determined on the basis of the aggregate                shall be automatically converted at the end of the Interest Period in effect into an ABR  Commitments under such Class) (other than the termination of the Commitment of any Lender as                       Borrowing;  provided  in  Section  2.21).   Any  commitment  fees  accrued  until  the  effective  date  of  any                                                                                                                           (vii)  no Interest Period may be selected for any Eurodollar Borrowing that  termination of the Revolving Credit Commitments shall be paid on the effective date of such                                                                                                                     would end later than a Repayment Date occurring on or after the first day of such Interest  termination.                                                                                                                     Period if, after giving effect to such selection, the aggregate outstanding amount of (A)                                                                                                                     the  Eurodollar  Borrowings  comprised  of  Loans  or  Other  Loans,  as  applicable,  with                                                                                                                     Interest  Periods  ending  on  or  prior  to  such  Repayment  Date  and  (B)  the  ABR                                         64                                                                                                         65  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






         Borrowings comprised of Loans or Other Loans, as applicable, would not be at least                which they are added and (B) the new Delayed Draw Term Loans allocated to ABR Loans shall           equal to the principal amount of Borrowings to be paid on such Repayment Date;                    be added to (and thereafter be deemed to constitute part of) such ABR Loans, and be subject to the                                                                                                             same Alternate Base Rate as such ABR Loans to which they are added.  The Administrative Agent                 (viii) upon notice to the Borrower from the Administrative Agent given at the               shall (and is hereby authorized to) take all appropriate actions in connection with the incurrence           request of the Required Lenders, after the occurrence and during the continuance of a             of new Delayed Draw Term Loans on the Required Conversion Date to ensure that all Lenders           Default or Event of Default, no outstanding Loan may be converted into, or continued              with  Delayed  Draw  Term  Loans  and  Initial  Draw  Term  Loans  outstanding  on  such  Required           as, a Eurodollar Loan; and                                                                        Conversion Date (after giving effect to the incurrence of new Delayed Draw Term Loans on the                                                                                                             Required Conversion Date) participate pro rata in accordance with this  Section 2.10(c) in each                 (ix)  all Eurodollar Loans comprising a Borrowing shall at all times have the               Borrowing of Initial Term Loans.  Each Initial Term Loan Lender agrees that the provisions of           same Interest Period.                                                                             Section 2.16 shall not apply to any conversion of Eurodollar Loans of such Lender on the Required                                                                                                             Conversion  Date  pursuant  to  this  Section  2.10(c).   From  the  Required  Conversion  Date,  the        (b)    Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to this        Delayed Draw Term Loans and the Initial Draw Term Loans shall constitute a single Class of Term  Agreement and specify whether the Borrower or the Subsidiary Revolver Borrower is the borrower             Loans having identical terms as set forth herein.  thereunder  and   (i)  the  identity  and  amount  of  the  Borrowing  that  the  Borrower  requests  be  converted  or  continued,  (ii)  whether  such  Borrowing  is  to  be  converted  to  or  continued  as  a       SECTION 2.11      Repayment of Borrowings.  (a) (i) The Borrower shall pay to the  Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the date of          Administrative Agent, for the account of the Lenders holding Initial Term Loans (A) on April 15th,  such conversion (which shall be a Business Day) and (iv) if such Borrowing is to be converted to           July 15th, October 15th and January 15th                              Repayment  or continued as a Eurodollar Borrowing, the Interest Period with respect thereto.  If no Interest          Date Period is specified in any such notice with respect `to any conversion to or continuation as a             after the date that is the later of the Closing Date and the Delayed Draw Funding Date, and on each  Eurodollar Borrowing, each Borrower shall be deemed to have selected an Interest Period of one             such date thereafter through the Initial Term Loan Maturity Date provided that if such day is not a        s duration.  The Administrative Agent shall advise the Lenders of any notice given pursuant          Business  Day,  the  Repayment  Date  shall  be  the  next  succeeding  Business  Day,  amortization  to this Section 2.10                          converted or continued Borrowing.  If the                    installments  equal  to  0.25%  of  the  aggregate  principal  amount  of  such  Initial  Term  Loans  applicable Borrower shall not have given notice in accordance with this Section 2.10 to continue           outstanding on the Delayed Draw Funding Date; as adjusted from time to time pursuant to Sections  any Borrowing  into a subsequent Interest Period (and shall not otherwise have  given notice in            2.12(b),  2.13(e)  and  2.22(d),  and  which  payments  shall  be  further reduced  as  a  result  of  the  accordance with this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of          application of prepayments in accordance with the order of priority set forth in Section 2.12 and  the Interest Period applicable thereto (unless repaid pursuant to the terms hereof), if a Eurodollar       (B) on the Initial Term Loan Maturity Date, the aggregate unpaid principal amount of all Initial     Borrowing, automatically be converted to an ABR Borrowing effective as of the expiration date              Term Loans on such date, together with accrued and unpaid interest on the principal amount to be  of such current Interest Period.                                                                           paid to but excluding such date.  For the avoidance of doubt the aggregate principal amount of the                                                                                                             Loans extended on the draw date thereof shall be the face amount of such Loans without giving        (c)    Notwithstanding any other provision of this Agreement, it is understood and agreed            effect to any upfront fees or OID.                                      Required Conversion Date may, in its discretion, elect to convert any then outstanding Initial Draw Term Loans that are                           (i)    The repayment dates and amounts for any Incremental Loans, Loans of  Eurodollar Loans to  either (i) ABR  Loans  or (ii) Eurodollar Loans  having an  Interest Period                   an Extended Class or Refinancing Loans shall be set forth in the applicable Incremental  designated by such Borrower, in each case regardless of whether such Required Conversion Date                      Loan  Assumption  Agreement,  Extension  Amendment  or  Refinancing  Amendment,  is the last day of  an  Interest Period with respect to such Initial Draw Term Loans, and such                     subject to any limitations set forth, as applicable, in Sections 2.22, 2.23 or 2.24.  Required  Conversion  Date  shall  constitute an  Interest  Payment  Date  with  respect  to all  such  outstanding Initial Draw Term Loans.  On the Required Conversion Date, the Delayed Draw Term                             (ii)   The applicable Borrower shall repay to the Administrative Agent for the  Loans made on such date shall be allocated ratably to the then outstanding Borrowings of ABR                       ratable  account  of  the  Appropriate  Lenders  on  the  Maturity  Date  for  any  Class  of  Loans and Eurodollar Loans after giving effect to such conversion (based upon the relative amount                  Revolving  Credit  Commitments  the  aggregate  outstanding  principal  amount  of  all  that the aggregate principal amount of then outstanding Initial Draw Term Loans that are ABR                       Revolving Credit Loans made in respect of such Revolving Credit Commitments.  Loans or Eurodollar Loans, respectively, outstanding on such Required Conversion Date (after  giving effect to such conversion) bears to the aggregate principal amount of Initial Draw Term                           (iii)  The applicable Borrower shall repay the aggregate principal amount of  Loans outstanding on such Required Conversion Date), with the effect that:  (A) the new Delayed                    each Swing Line Loan on the earlier to occur of (A) the date five (5) Business Days after  Draw Term Loans allocated to Eurodollar Loans shall be added to (and thereafter be deemed to                       such Loan is made, (B) the Latest Maturity Date for the Participating Revolving Credit  constitute a part of) such Eurodollar Loans, and be subject to the same Adjusted LIBO Rates and                    Commitments and (C) the date a Revolving Credit Loan is made to such Borrower  Interest Periods (in each case after giving effect to such conversion) as such Eurodollar Loans to                                          66                                                                                                         67  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






         pursuant  to  Section  2.01(b); provided that  such  repayment  may  be  made  from  the                        (ii)   (A) The Borrower may from time to time offer to make a Discounted           proceeds of a Revolving Credit Borrowing.                                                                 Term Loan Prepayment by providing the Auction Manager with three (3) Business                                                                                                                                                                               provided that (1)        (b)    To the extent not previously paid, all Initial Loans, Incremental Loans and Loans                     any such offer shall be made available, at the sole discretion of the Borrower, to (x) each  of an Extended Class shall be due and payable on their respective Maturity Date, the Incremental                   Term Lender and/or (y) each Term Lender with respect to any Class of Term Loans on  Loan Maturity Date and the maturity date of the Loans of such Extended Class, respectively,                        an individual Class basis (but in any event such prepayment need not be pro rata among  together with accrued and unpaid interest on the principal amount to be paid to but excluding the                  all Classes), (2) any such offer shall specify the aggregate principal amount offered to  date of payment.                                                                                                                   Specified  Discount  Prepayment  Amount                                                                                                                    applicable Class, the Class  or Classes of Term Loans subject  to such offer and the        (c)    All repayments pursuant to this Section 2.11 shall be subject to Section 2.16, but                                                      Specified Discount shall otherwise be without premium or penalty.                                                                     be  prepaid  (it  being  understood  that  different  Specified  Discounts  and/or  Specified                                                                                                                     Discount Prepayment Amounts may be offered with respect to different Classes of Term        SECTION 2.12       Voluntary Prepayments.  (a) The applicable Borrower shall have                            Loans and, in such event, each such offer will be treated as a separate offer pursuant to  the right at any time and from time to time to prepay any Borrowing, in whole or in part, upon at                  the terms of this Section 2.12(c)(ii)), (3) the Specified Discount Prepayment Amount                                                                                                                     shall  be in an  aggregate  amount  not less  than  $10,000,000 and  whole  increments of  written or fax notice) in the case of Eurodollar Loans, or written or fax notice (or telephone notice              $1,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed  promptly  confirmed  by  written  or fax notice) at  least  one Business  Day  prior to  the  date  of             to by the Administrative Agent in its reasonable discretion) and (4) each such offer shall  prepayment in the case of ABR Loans, to the Administrative Agent before 12:00 noon, New York                       remain outstanding through the Specified Discount Prepayment Response Date.  The  City time; provided, however, that each partial prepayment shall be in an amount that is an integral               Auction Manager will promptly provide each Appropriate Lender with a copy of such  multiple  of  $1,000,000  and  not  less  than  $5,000,000  (or  in  such  lower  minimum  amounts  or             Specified  Discount  Prepayment  Notice  and  a  form  of  the  Specified  Discount  multiples as agreed to by the Administrative Agent in its reasonable discretion).  All voluntary                                                  Specified Discount Prepayment Response prepayments, including all optional prepayments under this Section 2.12 shall be subject to Section                completed and  returned  by each  such  Term  Lender  to  the Auction  Manager (or  its  2.16, but otherwise without premium (except as set forth in Section 2.12(d)) or penalty.  Any such                 delegate) by no later than 5:00 p.m., New York City time, on the third Business Day  notice of prepayment pursuant to this Section 2.12(a) may state that it is conditioned upon the                    after the date of delivery of such notice to such Term Lenders (which date may be  occurrence or non-occurrence of any event specified therein (including the effectiveness of other                  extended  for  a  period  not  exceeding  three  (3)  Business  Days  upon  notice  by  the  credit facilities), in which case such notice may be revoked by the applicable Borrower or the                     Borrower to, and with the co                            Specified Discount  applicable Borrower may delay the date of prepayment identified therein to a later date reasonably                 Prepayment Response Date   acceptable to the Administrative Agent (in each case by written notice to the Administrative Agent  on or prior to the specified effective date) if such condition is not satisfied or the satisfaction of                       (A)   Each  Term  Lender  receiving  such  offer  shall  notify  the  Auction  such condition is delayed.                                                                                             Manager (or its delegate) by the Specified Discount Prepayment Response Date                                                                                                                         whether  or  not  it  agrees  to  accept  a  prepayment  of  any  of  its  applicable  then        (a)    Voluntary prepayments of any Class of outstanding Loans shall be applied to such                          outstanding Term Loans at the Specified Discount and, if so (such accepting Term  Classes of Loans as the Borrower may direct, or in the absence of direction, ratable among the                                   Discount Prepayment Accepting Term Lender Classes, and thereafter to the remaining amortization payments under such Class, as the applicable                                                                     at such offered discount.   Borrower may direct, and in the absence of such direction, in direct order of maturity thereof.                        Each  acceptance  of  a  Discounted  Term  Loan  Prepayment  by  a  Discount                                                                                                                         Prepayment Accepting Term Lender shall be irrevocable.  Any Term Lender whose        (b)    Notwithstanding anything in any Loan Document  to  the contrary, so long as no                                                                                                                         Specified Discount Prepayment Response is not received by the Auction Manager  Specified Event of Default has occurred and is continuing or would result from such prepayment,                                                                                                                         by the Specified Discount Prepayment Response Date shall be deemed to have  the Borrower may prepay the outstanding Term Loans (which shall, for the avoidance of doubt, be                                                                                                                         declined  to  accept  the  applicable  Borrower  Offer  of  Specified  Discount  automatically and permanently cancelled immediately upon such prepayment) on the following                                                                                                                         Prepayment.  basis:                                                                                                                               (B)   If there is at least one Discount Prepayment Accepting Term Lender,                 (i)   The Borrower shall have the right to make a voluntary prepayment of                                                                                                                         the Borrower will make a prepayment of outstanding Term Loans pursuant to this           Term Loans at a discount to par pursuant to a Borrower Offer of Specified Discount                                                                                                                         paragraph  (ii)  to  each  Discount  Prepayment  Accepting  Term  Lender  on  the           Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower                                                                                                                         Discounted  Prepayment  Effective  Date  in  accordance  with  the  respective           S                                                             Discounted           Term Loan Prepayment                                     Section 2.12(c).                                         68                                                                                                         69  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






             Specified Discount Prepayment Response given pursuant to subsection (B) above;                        of the Discount Range Prepayment Offer to be submitted by a responding Term Lender               provided  that,  if  the  aggregate  principal  amount  of  Term  Loans  accepted  for                to the Auction Manager (or its delegate) by no later than 5:00 p.m., New York City time,               prepayment  by  all  Discount  Prepayment  Accepting  Term  Lenders  exceeds  the                     on the third Business Day after the date of delivery of such notice to such Term Lenders               Specified Discount Prepayment Amount, such prepayment shall be made pro rata                          (which date may be extended for a period not exceeding three (3) Business Days upon               among the Discount Prepayment Accepting Term Lenders in accordance with the                                                                                           Discount               respective  principal  amounts  accepted  to  be  prepaid  by  each  such  Discount                   Range  Prepayment  Response  Date                         Discount  Range               Prepayment Accepting Term Lender and the Auction Manager (in consultation with                        Prepayment Offer shall be irrevocable and shall specify a discount to par within the               the Borrower and subject to rounding requirements of the Auction Manager made                                            Submitted Discount                                                                 Specified Discount                                 allow prepayment of any or all of its then outstanding Term Loans of the applicable               Proration                                                                                             Class or Classes and the maximum aggregate principal amount and Classes of such Term               (3) Business Days following the Specified Discount Prepayment Response Date,                                                 Submitted Amount              notify (1)                                                                                            prepaid  at  the  Submitted  Discount.   Any  Term  Lender  whose  Discount  Range               the Discounted Prepayment Effective Date and the aggregate principal amount of                        Prepayment  Offer  is  not  received  by  the  Auction  Manager  by  the Discount  Range               the Discounted Term Loan Prepayment and the Classes to be prepaid, (2) each                           Prepayment Response Date shall be deemed to have declined to accept a Discounted               Term  Lender  of  the  Discounted  Prepayment  Effective  Date,  and  the  aggregate                  Term Loan Prepayment of any of its Term Loans at any discount to their par value within               principal amount and the Classes of Term Loans to be prepaid at the Specified                         the Discount Range.               Discount on such date and (3) each Discount Prepayment Accepting Term Lender               of  the  Specified  Discount  Proration,  if  any,  and  confirmation  of  the  principal                       (A)   The Auction Manager shall review all Discount Range Prepayment               amount, Class and Type of Term Loans of such Term Lender to be prepaid at the                             Offers received on or before the applicable Discount Range Prepayment Response               Specified Discount on such date.  Each determination by the Auction Manager of                            Date and shall determine (in consultation with the Borrower and subject to rounding               the amounts stated in the foregoing notices to the Borrower and such Term Lenders                         requirements of the Auction Manager made in its sole reasonable discretion) the               shall be conclusive and binding for all purposes absent manifest error.  The payment                      Applicable Discount and Term Loans to be prepaid at such Applicable Discount in               amount specified in such notice to the Borrower shall be due and payable by the                           accordance  with  this  subsection  (B).   The  Borrower  agrees  to  accept  on  the               Borrower  on  the  Discounted  Prepayment  Effective  Date  in  accordance  with                          Discount Range Prepayment Response Date all Discount Range Prepayment Offers               subsection (iv) below (subject to subsection (x) below).                                                  received by the Auction Manager within the Discount Range by the Discount Range                                                                                                                         Prepayment Response Date, in the order from the Submitted Discount that is the                 (iii) (A)  The  Borrower  may  from  time  to  time  solicit  Discount  Range                           largest discount to par to the Submitted Discount that is the smallest discount to                                                                                                                         par, up to and including the Submitted Discount that is the smallest discount to par           notice in the form of a Discount Range Prepayment Notice; provided that (1) any such                          within the Discount Range (such Submitted Discount that is the smallest discount           solicitation shall be extended, at the sole discretion of the Borrower, to (x) each Term                                                                       Applicable Discount          Lender and/or (y) each Term Lender with respect to any Class of Term Loans on an                              which  yields  a  Discounted  Term  Loan  Prepayment  in  an  aggregate  principal           individual  Class  basis,  (2)  any  such  notice  shall  specify  the  maximum  aggregate                    amount equal to the lower of (1) the Discount Range Prepayment Amount and (2)                                                         Discount  Range  Prepayment                                     the  sum  of  all  Submitted  Amounts.   Each  Term  Lender  that  has  submitted  a           Amount                                                                                                        Discount Range Prepayment Offer to accept prepayment at a discount to par that is                                                    Discount  Range                                                      larger than or equal to the Applicable Discount shall be deemed to have irrevocably           amount of such Term Loans with respect to each relevant Class of Term Loans willing                           consented to prepayment of Term Loans equal to its Submitted Amount (subject to           to be prepaid by the Borrower (it being understood that different Discount Ranges and/or                      any  required  proration  pursuant  to  the  following  subsection  (C)(3))  at  the           Discount Range Prepayment Amounts may be offered with respect to different Classes                                                                     Participating Term Lender            of Term Loans and, in such event, each such offer will be treated as a separate offer           pursuant to the terms of this Section 2.12(c)(iii)), (3) the Discount Range Prepayment                              (B)   If there is at least one Participating Term Lender, the Borrower will           Amount  shall  be  in  an  aggregate  amount  not  less  than  $10,000,000  and  whole                        prepay the respective outstanding Term Loans of each Participating Term Lender           increments of $1,000,000 in excess thereof (or in such lower minimum amounts or                               on the Discounted Prepayment Effective Date in the aggregate principal amount           multiples as agreed to by the Administrative Agent in its reasonable discretion) and (4)           each such solicitation by the Borrower shall remain outstanding through the Discount                          Offer at the Applicable Discount; provided that if the Submitted Amount by all           Range Prepayment Response Date.  The Auction Manager will promptly provide each                               Participating Term Lenders offered at a discount to par greater than the Applicable           Appropriate Lender with a copy of such Discount Range Prepayment Notice and a form                            Discount  exceeds  the  Discount  Range  Prepayment  Amount,  prepayment  of  the                                         70                                                                                                         71  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






             principal amount of the relevant Term Loans for those Participating Term Lenders                      after the date of delivery of such notice to such Term Lenders (which date may be               whose  Submitted  Discount  is  a  discount  to  par  greater  than  or  equal  to  the               extended  for  a  period  not  exceeding  three  (3)  Business  Days  upon  notice  by  the                                     Identified Participating Term Lenders                                                                              Solicited Discounted Prepayment Response               pro rata among the Identified Participating Term Lenders in accordance with the                       Date              Submitted  Amount  of  each  such  Identified  Participating  Term  Lender  and  the                  irrevocable, (y) remain outstanding until the Acceptance Date, and (z) specify both a               Auction  Manager  (in  consultation  with  the  Borrower  and  subject  to  rounding                                   Offered Discount              requirements of the Auction Manager made in its sole reasonable discretion) will                      prepayment of its then outstanding Term Loan and the maximum aggregate principal                                       Discount Range Proration                                                                                             Offered Amount              shall  promptly,  and  in  any  case  within  five  (5)  Business  Days  following  the               willing to have prepaid at the Offered Discount.  Any Term Lender whose Solicited               Discount  Range  Prepayment  Response  Date,  notify  (1)  the  Borrower  of  the                     Discounted Prepayment Offer is not received by the Auction Manager by the Solicited                                                                                                                     Discounted Prepayment Response Date shall be deemed to have declined prepayment               Prepayment Effective Date, the Applicable Discount, and the aggregate principal                       of any of its Term Loans at any discount.               amount of the Discounted Term Loan Prepayment and the Classes to be prepaid,               (2) each Term Lender of the Discounted Prepayment Effective Date, the Applicable                                (A)   The Auction Manager shall promptly provide the Borrower with a               Discount, and the aggregate principal amount and Classes of Term Loans to be                              copy  of  all  Solicited  Discounted  Prepayment  Offers  received  on  or  before  the               prepaid  at  the  Applicable  Discount  on  such  date,  (3)  each  Participating  Term                   Solicited Discounted Prepayment Response Date.  The Borrower shall review all               Lender of the aggregate principal amount and Classes of such Term Lender to be                            such Solicited Discounted Prepayment Offers and select the smallest of the Offered               prepaid  at  the  Applicable  Discount  on  such  date,  and  (4)  if  applicable,  each                  Discounts  specified  by  the  relevant  responding  Term  Lenders  in  the  Solicited               Identified  Participating  Term  Lender  of  the  Discount  Range  Proration.   Each                      Discounted  Prepayment  Offers  that  is  acceptable  to  the  Borrower  in  its  sole               determination  by  the  Auction  Manager  of  the  amounts  stated  in  the  foregoing                                  Acceptable Discount              notices to the Borrower and Term Lenders shall be conclusive and binding for all                          discretion, to accept any Offered Discount as the Acceptable Discount, then as soon               purposes absent manifest error.  The payment amount specified in such notice to                           as practicable after the determination of the Acceptable Discount, but in no event               the  Borrower  shall  be  due  and  payable  by  the  Borrower  on  the  Discounted                       later than by the third Business Day after the date of receipt by the Borrower from               Prepayment Effective Date in accordance with subsection  (vi) below (subject to                           the Auction Manager of a copy of all Solicited Discounted Prepayment Offers               subsection (x) below).                                                                                    pursuant to the first sentence of this subsection (B) Acceptance Date                                                                                                                        Borrower  shall  submit  an  Acceptance  and  Prepayment  Notice  to  the  Auction                 (iv)  (A) The  Borrower may from time to time solicit Solicited Discounted                              Manager setting forth the Acceptable Discount.  If the Auction Manager shall fail                                                                                                                         to  receive  an  Acceptance  and  Prepayment  Notice  from  the  Borrower  by  the           notice in the form of a Solicited Discounted Prepayment Notice; provided that (1) any                         Acceptance  Date,  the  Borrower  shall  be  deemed  to  have  rejected  all  Solicited           such solicitation shall be extended, at the sole discretion of the Borrower, to (x) each                      Discounted Prepayment Offers.           Term Lender and/or (y) each Term Lender with respect to any Class of Term Loans on           an individual Class basis,  (2) any such notice shall specify the maximum aggregate                                 (B)   Based upon the Acceptable Discount and the Solicited Discounted                                      Solicited Discounted Prepayment Amount                                             Prepayment  Offers  received  by  Auction  Manager  by  the  Solicited  Discounted           Class or Classes of Term Loans the Borrower is willing to prepay at a discount (it being                      Prepayment  Response  Date,  within  three  (3)  Business  Days  after  receipt  of  an           understood that  different  Solicited  Discounted  Prepayment  Amounts  may  be  offered                      Acceptance and Prepayment No       Discounted Prepayment Determination           with respect to different Classes of Term Loans and, in such event, each such offer will                      Date          be treated as a separate offer pursuant to the terms of this Section 2.12(c)(iv)), (3) the                    subject  to  rounding  requirements  of  the  Auction  Manager  made  in  its  sole           Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than                          reasonable  discretion)  the  aggregate  principal  amount  and  the  Classes  of  Term           $10,000,000 and whole increments of $1,000,000 in excess thereof (or in such lower                                       Acceptable Prepayment Amount          minimum  amounts  or  multiples  as  agreed  to  by  the  Administrative  Agent  in  its                      the  Acceptable  Discount  in  accordance  with  this  Section  2.12(c)(iv).   If  the           reasonable  discretion)  and  (4)  each  such  solicitation  by  the  Borrower  shall  remain                 Borrower elects to accept any Acceptable Discount, then the Borrower agrees to           outstanding through the Solicited Discounted Prepayment Response Date.  The Auction                           accept all Solicited Discounted Prepayment Offers received by Auction Manager           Manager will promptly provide each Appropriate Lender with a copy of such Solicited                           by the Solicited Discounted Prepayment Response Date, in the order from largest           Discounted  Prepayment  Notice  and  a  form  of  the  Solicited  Discounted  Prepayment                      Offered Discount to smallest Offered Discount, up to and including the Acceptable           Offer to be submitted by a responding Term Lender to the Auction Manager (or its                              Discount.   Each  Term  Lender  that  has  submitted  a  Solicited  Discounted           delegate) by no later than 5:00 p.m., New York City time, on the third Business Day                           Prepayment Offer with an Offered Discount that is greater than or equal to the                                         72                                                                                                         73  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






             Acceptable Discount shall be deemed to have irrevocably consented to prepayment                       Prepayment Effective Date and all such prepayments shall be applied to the remaining               of  Term  Loans  equal  to  its  Offered  Amount  (subject  to  any  required  pro-rata               scheduled installments  of  principal  of  the  relevant  Class  of  Term  Loans  pursuant  to               reduction pursuant to the following sentence) at the Acceptable Discount (each such                   Section 2.11 on a pro rata basis across the installments applicable to the Class of Term                               Qualifying  Term  Lender          rrower  will  prepay                                Loans so prepaid.  The Term Loans so prepaid shall be, as set forth in this Section               outstanding Term Loans pursuant to this subsection (iv) to each Qualifying Term                       2.12(c), accompanied by all accrued and unpaid interest on the par principal amount so               Lender in the aggregate principal amount and of the Classes specified in such Term                    prepaid up to, but  not including, the Discounted Prepayment Effective Date.   Each                                                                                                                     prepayment of the outstanding Term Loans pursuant to this Section 2.12(c) shall be paid               provided that  if the  aggregate  Offered Amount  by  all  Qualifying Term  Lenders                   to  the  Discount  Prepayment  Accepting  Lenders,  Participating  Term  Lenders,  or               whose Offered Discount is greater than or equal to the Acceptable Discount exceeds                    Qualifying Term Lenders, as applicable, and shall be applied to the relevant Borrowings               the Solicited Discounted Prepayment Amount, prepayment of the principal amount                        of Term Loans of the applicable Class of such Term Lenders ratably.  The aggregate               of the Term Loans for those Qualifying Term Lenders whose Offered Discount is                         principal amount of the Classes and installments of the relevant Term Loans outstanding                                                           Identified Qualifying Term                                shall be deemed reduced by the full par value of the aggregate principal amount of the               Lenders           de pro rata among the Identified Qualifying Term Lenders                            Classes of Term Loans prepaid on the Discounted Prepayment Effective Date in any               in accordance with the Offered Amount of each such Identified Qualifying Term                         Discounted Term Loan Prepayment.               Lender and the Auction Manager (in consultation with the Borrower and subject to               rounding  requirements  of  the  Auction  Manager  made  in  its  sole  reasonable                          (vii)  To the extent not expressly provided for herein, each Discounted Term                                                    Solicited Discount Proration                                     Loan  Prepayment  shall  be  consummated  pursuant  to  procedures  consistent  with  the               or prior to the Discounted Prepayment Determination Date, the Auction Manager                         provisions in this Section 2.12(c), established by the Auction Manager acting in its               shall promptly notify (1) the Borrower of the Discounted Prepayment Effective                         reasonable discretion and as reasonably agreed by the Borrower.               Date and Acceptable Prepayment Amount comprising the Discounted Term Loan               Prepayment and the Classes to be prepaid, (2) each Term Lender of the Discounted                            (viii) Notwithstanding  anything  in  any  Loan  Document  to  the  contrary,  for               Prepayment  Effective  Date,  the  Acceptable  Discount,  and  the  Acceptable                        purposes of this Section 2.12(c), each notice or other communication required to be               Prepayment  Amount  of  all  Term  Loans  and  the  Classes  to  be  prepaid  at  the                 delivered  or  otherwise  provided  to  the  Auction  Manager  (or  its  delegate)  shall  be               Applicable  Discount  on  such  date,  (3)  each  Qualifying  Term  Lender  of  the               aggregate principal amount and the Classes of such Term Lender to be prepaid at                       during normal business hours of such notice or communication; provided that any notice               the  Acceptable  Discount  on  such  date,  and  (4)  if  applicable,  each  Identified               or communication actually received outside of normal business hours shall be deemed               Qualifying Term Lender of the Solicited Discount Proration.  Each determination                       to have been given as of the opening of business on the next Business Day.               by  the Auction Manager of  the amounts stated  in  the  foregoing notices to  the               Borrower and Term Lenders shall be conclusive and binding for all purposes absent                           (ix)   Each  of  the Group Members and  the  Term  Lenders  acknowledge  and               manifest error.  The payment amount specified in such notice to the Borrower shall                    agree that the Auction Manager may perform any and all of its duties under this Section               be due and payable by the Borrower on the Discounted Prepayment Effective Date                        2.12(c) by itself or through any Affiliate of the Auction Manager and expressly consents               in accordance with subsection (vi) below (subject to subsection (x) below).                           to  any  such delegation  of duties  by  the  Auction  Manager  to  such  Affiliate and  the                                                                                                                     performance of  such  delegated duties  by such Affiliate.  The exculpatory  provisions                 (v)   In connection with any Discounted Term Loan Prepayment, the Group                             pursuant to this Agreement shall apply to each Affiliate of the Auction Manager and its           Members and the Term Lenders acknowledge and agree that the Auction Manager may                           respective  activities  in  connection  with  any  Discounted  Term  Loan  Prepayment           require  as  a  condition  to  any  Discounted  Term  Loan  Prepayment,  the  payment  of                 provided for in this Section 2.12(c) as well as activities of the Auction Manager.           customary  and  documented  fees  and  out-of-pocket  expenses  from  the  Borrower  in           connection therewith.                                                                                           (x)    The  Borrower  shall  have  the  right,  by  written  notice  to  the  Auction                                                                                                                     Manager, to revoke or modify its offer to make a Discounted Term Loan Prepayment                 (vi)  If any Term Loan is prepaid in accordance with paragraphs (ii) through                        and  rescind  the  applicable  Specified  Discount  Prepayment  Notice,  Discount  Range           (iv) above, the Borrower shall prepay such Term Loans on the Discounted Prepayment                        Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion           Effective Date without premium or penalty, except as set forth in Section 2.12(d).  The                   at any time on or prior to the applicable Specified Discount Prepayment Response Date           Borrower shall make such prepayment to the Administrative Agent, for the account of                       (and  if  such  offer  is  revoked  pursuant  to  the  preceding  clauses,  any  failure  by  the           the Discount Prepayment Accepting Lenders, Participating Term Lenders, or Qualifying                      Borrower to make  any prepayment to a Term  Lender, as applicable, pursuant  to this                                                                                                                     Section 2.12(c) shall not constitute a Default or Event of Default under Section 7.01 of           available  funds  not  later  than  1:00  p.m.,  New  York  City  time,  on  the  Discounted              this Agreement or otherwise).                                         74                                                                                                         75  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






      Notwithstanding anything to the contrary contained in this Agreement, any Borrower Offer                     offer price equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no        of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment                         more than) 100% of the principal amount of thereof, plus accrued and unpaid interest, if        Offers or Borrower Solicitation of Discounted Prepayment Offers pursuant to this Section                     any, to, but not including, the date of purchase, in accordance with the procedures set        2.12 may state that it is conditioned upon the occurrence or non-occurrence of any event                     forth in this Agreement or the agreements governing the Pari Passu Indebtedness, as        specified therein (including the effectiveness of other credit facilities), in which case such               applicable.        notice may be revoked by the applicable Borrower or the applicable Borrower may delay        the date of Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of                      (b)   No later than 10 days after the date on which the financial statements are delivered        Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment                   pursuant  to  Section  4.10(a)(1)  of  Annex  I  hereof  (such  dat ECF  Prepayment  Date       Offers identified therein (by written notice to the Administrative Agent on or prior to the          commencing with the financial statements delivered with respect to the fiscal year of the Borrower        specified  effective  date)  if  such  condition  is  not  satisfied  or  the  satisfaction  of  such ending December 31st, 2020, the Borrower shall prepay outstanding Term Loans in accordance        condition is delayed.                                                                                with  Section  2.13(e)                                                      ECF                                                                                                             Percentage                                            provided that (x) in calculating        (c)    In  the event that on or prior to the date that is twelve months from the Initial             such Pari Ratable Share, outstanding revolving indebtedness that is Pari Passu Indebtedness shall  Funding Date either (i) the Borrower makes any prepayment of Initial Term Loans in connection              not be included in the calculation of outstanding Pari Passu Indebtedness except to the extent such  with a Repricing Transaction (including by way of a Refinancing Amendment) or (ii) effects any             revolving  indebtedness  is  prepaid  or  offered  to  be  prepaid  (with  a  permanent  reduction  of  amendment of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the            corresponding commitments) no later than the ECF Prepayment Date with its Pari Ratable Share  Administrative Agent for the ratable account of the Lenders, in the case of clause (i) 1.00% of the        of an amount equal to 50% of Excess Cash Flow for the fiscal year then ended and (y) such Pari  principal amount of the Initial Term Loans so repaid, or in the case of clause (ii) a payment equal        Ratable Share shall be reduced by (without duplication of prepayments contemplated in clause (x)  to 1.00% of the aggregate amount of the Initial Term Loans subject to such Repricing Transaction.          above or by any such amounts deducted pursuant to this Section 2.13(b) in a previous year) (i) the                                                                                                             aggregate principal amount of any voluntary prepayments of Loans pursuant to Section 2.12 and        SECTION 2.13       Mandatory  Prepayments.   (a)  (i)  Any  Net  Available  Cash  from               any  voluntary  prepayments  of  Pari  Passu  Indebtedness  pursuant  to  any  equivalent  voluntary  Asset  Dispositions  that  is  not  applied  or  invested  or  committed  to  be  applied  or  invested  as prepayment provision in the documentation governing such other Pari Passu Indebtedness (and in  provided in Section 4.08(b) of Annex I                                                                     the case of any revolving indebtedness, solely to the extent the corresponding commitments are                                                                                                             permanently reduced); (ii) the amount of any reductions in the outstanding principal amount of                 (i)   On or prior to the 366th day (or the 546th day, in the case of any Net                any Loans and Pari Passu Indebtedness (and in the case of any revolving indebtedness, solely to           Available Cash committed to be used pursuant to a definitive binding agreement or                 the extent the corresponding commitments are permanently reduced), in each case resulting from           commitment approved by the Board of Directors of the Borrower pursuant to clauses (2)             any assignments made in accordance with Section 9.04(k) or (l) (or any equivalent provision in           or (3) of Section 4.08(b) of Annex I hereof) after the later of (A) the date of such Asset        the documentation governing such other Pari Passu Indebtedness) made or effected during such           Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of            fiscal year and on or after the end of such fiscal year but prior to the ECF Prepayment Date (the           Excess  Proceeds  exceeds  $50  million,  the  Borrower  shall  (1)  deliver  a  notice  of        Applicable ECF Deduct Period (A) the amount of any Permitted Investment made in cash           prepayment to the Administrative Agent in accordance with Section 2.13(f) and (2) to              (other than any Permitted Investments pursuant to clauses (c), (e) and (k)  of the definition thereof)           the extent the Borrower elects, or the Borrower or a Guarantor is required by the terms           and any Restricted Payment made in cash pursuant to Section 4.05 of Article IV in Annex I hereof,           of  other  outstanding  Pari  Passu  Indebtedness,  deliver  a  notice  of  prepayment  or        in each case, that are made during such Applicable ECF Deduct Period by the Borrower or, in the           redemption,  or  make  an  offer,  to  all  holders  of  such  other  outstanding  Pari  Passu    case of Permitted Investments, the Borrower or any Restricted Subsidiary thereof with Internally           Indebtedness,  in  each case, to  prepay or purchase the maximum principal amount of              Generated Cash and (B) the aggregate amount of Permitted Expenditures to the extent expected to           Term Loans and any such Pari Passu Indebtedness to which such notice or offer apply               be consummated or made, as applicable, during the period of four consecutive fiscal quarters of           that may be prepaid or purchased out of the Excess Proceeds, on a pro  rata  basis,               the Borrower following the end of such fiscal year for which the Excess Cash Flow is being           calculated in accordance with Section 2.13(g).                                                    calculated, and expected in good faith to be financed with Internally Generated Cash; provided                                                                                                             that to the extent that the aggregate amount of Permitted Expenditures financed with Internally                 (ii)  The Borrower shall (x) in the case of Term Loans, no earlier than twenty              Generated Cash and paid in cash during such following period of four consecutive fiscal quarters           (20) days and no later than thirty-five (35) days following the notice referred to in             is less than the aggregate amount of Planned Expenditures expected to be financed with Internally           Section 2.13(a)(ii)(B)(1) above and subject to Section 2.13(g) and (y) in the case of any         Generated Cash, the amount of such shortfall shall be added to the ECF Payment Amount at the           Pari  Passu  Indebtedness,  within  the  time  periods  required  by  such  Pari  Passu           end of such following period of four consecutive fiscal quarters; provided that, in each case, such           Indebtedness and subject to any provisions under any agreement or governing such Pari             prepayments  are  not  funded  with  proceeds  of  long-term  Indebtedness  (other  than  revolving           Passu Indebtedness that are analogous to Section 2.13(g), prepay or purchase the Term                              ECF Payment Amount          Loans and such Pari Passu Indebtedness in accordance with such notice or offer at an              Loans pursuant to this Section 2.13(b) in respect of any fiscal year shall only be required in the                                         76                                                                                                         77  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






amount (if any) by which the ECF Payment Amount for such fiscal year exceeds $15.0 million,                the Borrower believes in good faith that repatriation of such amount would have material adverse  (y) the ECF Percentage for any fiscal year with respect to which Excess Cash Flow is measured              tax consequences; provided that if repatriation of any affected portion of the Excess Proceeds or  shall be reduced to (i) 25% if the Consolidated Net Leverage Ratio as of the last day of such fiscal       Excess Cash Flow would no longer have material adverse tax consequences, as determined by the  year is less than or equal to 4.50 to 1.00. and greater than 3.75 to 1.00 (and if an amount of such        Borrower in good faith, the Borrower shall promptly (and in any event within five Business Days)  prepayment would result in the Consolidated Net Leverage Ratio being reduced to equal to or less           prepay the Loans in an amount equal to any such portion no longer affected.  than 3.75 to 1.00, with respect to the remaining ECF Payment Amount, with the ECF Percentage  being calculated after giving effect to such prepayment) and (ii) to zero if the Consolidated Net                (d)   In the event and on such occasion that (i) the Revolving Credit Exposure of any  Leverage Ratio as of the last day of such fiscal year is less than or equal to 3.75 to 1.00 (and if an     Class exceeds the aggregate amount of the Revolving Credit Commitments of such Class or (ii) the  amount of such prepayment would result in the Consolidated Net Leverage Ratio being reduced                Revolving  Credit  Exposure  under  Participating  Revolving  Credit  Commitments  exceeds  the  to equal to or less than 3.75 to 1.00, with respect to the remaining ECF Payment Amount, with the          Participating  Revolving  Credit  Commitments,  the  Borrower  shall  promptly  (and  in  any  event  ECF  Percentage  being  calculated  after  giving  effect  to  such  prepayment)..   Notwithstanding       within  five  Business  Days)  prepay  (or  in  the  case  of  L/C  Exposure,  cash  collateralize)  the  anything  to  the  contrary  contained  in  this  Agreement,  when  calculating  the  Consolidated  Net    Revolving Credit Loans, L/C Exposure and/or Swing Line Loans in an aggregate amount equal to  Leverage  Ratio  for  the  purposes  of  this  Section  2.13(b),  Specified  Indebtedness  shall  be       such excess (it being understood that the Borrower shall prepay Revolving Loans and/or Swing  determined after giving pro forma effect to any voluntary prepayments made pursuant to Section             Line Loans prior to cash collateralization of L/C Exposure).  2.12 and any voluntary prepayments of Pari Passu Indebtedness, in each case, after the end of the                                                                                                                   (e)   Mandatory prepayments  of outstanding Loans under this Agreement pursuant to  assuming such payments had been made on the last day of such fiscal year.  For purposes of this            Section 2.13(a) and (b) shall be allocated to any Class of Term Loans outstanding as directed by  Section  2.13(b),  any  voluntary  prepayments  of  Loans  or  other  Pari  Passu  Indebtedness  shall     the Borrower, shall be applied pro rata to Term Lenders within such Class of Term Loans, based  include purchases of Loans or other Pari Passu Indebtedness by the Borrower or any Restricted              upon the outstanding principal amounts owing to each such Term Lender under such Class of Term  Subsidiary at or below par, in accordance with Section 2.12(c) in the case of the Term Loans, or           Loans, and shall be applied against the remaining scheduled installments of principal due in respect  any equivalent provision in the documentation governing such other Pari Passu Indebtedness, in             of such Class of Term Loans as directed by the Borrower (and in the absence of such direction, in  which case the amount of voluntary prepayments of Loans or other Pari Passu Indebtedness shall             direct order of maturity); provided that, unless otherwise permitted under this Agreement, such  be deemed not to exceed the actual purchase price of such Loans or other Pari Passu Indebtedness           prepayments may not be directed to a later maturing Class of Term Loans without at least a pro  below par.                                                                                                 rata  repayment  of  any  earlier  maturing  Classes  of  Term  Loans  (except  that  any  Class  of                                                                                                             Incremental Term Loans, Extended Term Loans or Refinancing Term Loans may specify that one        (c)    Notwithstanding anything to the contrary in this Agreement, for purposes of this              or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier  Section 2.13, (i) to the extent that any or all of the Excess Proceeds or Excess Cash Flow realized        maturing Term Loans).  by a direct or indirect Subsidiary of the Borrower that is not a U.S. Person are prohibited or delayed  by applicable local law from being repatriated to the United States, the portion of such Excess                  (f)   The  Borrower  shall  deliver  to  the  Administrative  Agent,  at  the  time  of  each  Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans            prepayment required under this Section 2.13 (other than Section 2.13(d)), (i) a certificate signed  at the times provided in this Section 2.13(a) or (b), as applicable, but may be retained by the            by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the  applicable  Subsidiary  so  long,  but  only  so  long,  as  the  applicable  local  law  will  not  permit amount of such prepayment and (ii) to the extent practicable (except in respect of prepayments  repatriation to the United States (the Borrower hereby agreeing to cause the applicable Subsidiary         required  under  Section  2.13(a)),  at  least  three  Business  Days  prior  written  notice  of  such  to  promptly  take  all  actions  reasonably  required  by  the  applicable  local  law  to  permit  such  prepayment.  Any such notice of prepayment may state that such notice is conditioned upon the  repatriation), and once such repatriation of any of such affected Excess Proceeds or Excess Cash           occurrence or non-occurrence of any event specified therein (including the effectiveness of other  Flow is permitted under the applicable local law, an amount equal to such Excess Proceeds or               credit facilities), in which case such notice may be revoked by the Borrower or the Borrower may  Excess Cash Flow permitted to be repatriated will be promptly (and in any event no later than two          delay the date of prepayment identified therein (by written notice to the Administrative Agent, on  (2) Business Days after any such repatriation) applied (net of additional taxes that are or would be       or prior to the specified effective date) if such condition is not satisfied or the satisfaction of such  payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to            condition is delayed.  Each notice of prepayment shall specify the prepayment date, the Type of  this Section 2.13 to the extent otherwise provided herein or (ii) to the extent that the Borrower          each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid.   determines in good faith that repatriation of an amount equal to any or all of the Excess Proceeds         All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall  or Excess Cash Flow by such Subsidiary that is not a U.S. person would have material adverse tax           otherwise be without premium or penalty, and shall be accompanied by accrued and unpaid interest  consequences with respect to such Excess Proceeds or Excess Cash Flow, the Excess Proceeds or              on the principal amount to be prepaid to but excluding the date of payment.  Excess Cash Flow so affected shall not be required to be applied to repay Loans at the times  provided in accordance with Sections 2.13(a) or (b), as applicable, and may be deducted from any                 (g)   The Administrative Agent shall promptly notify each Lender of the contents of any  amounts otherwise due under Sections 2.13(a) or (b), as applicable, so long, but only so long, as          prepayment notices delivered to the Administrative Agent pursuant to clause (a) of this Section                                         78                                                                                                         79  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






2.13                                                                                                       Loan or increase the cost to any Lender or to reduce the amount of any sum received or receivable  portion of its Pro Rata Share of a                                       Declined                          by such Lender hereunder (whether of principal, interest or otherwise) by an amount deemed by  Proceeds                                                  (a) of this  Section 2.13 by                     such  Lender  to  be  material,  then  the  Borrower  will  pay  to  such  Lender  upon  demand  such                                 Rejection  Notice                                                           additional amount or amounts as will compensate such Lender for such additional costs incurred  Borrower no later than 5:00 p.m., New York City time, on the date that is three (3) Business Days          or reduction suffered.  (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion)  prior to the proposed prepayment date.  Each Rejection Notice from a given Lender shall specify                  (a)   If  any  Lender  shall  have  determined  that  any  Change  in  Law  regarding  capital  the principal amount of the mandatory repayment of Loans to be rejected by such Lender.  If a              adequacy or liquidity has had or would have the effect of reducing the rate of return on such  Lender fails to deliver a Rejection Notice to the Administrative Agent  within the time frame  specified above or such Rejection Notice fails to specify the principal amount of the Loans to be          this Agreement or the Loans made by such Lender pursuant hereto to a level below that which  rejected, any such failure will be deemed an acceptance of the total amount of such mandatory  prepayment of Loans.  Any Declined Proceeds shall be retained by the Borrower and may be                   (taking  into  consi applied in any manner that is not prohibited by this Agreement.  If the aggregate principal amount         company with respect to capital adequacy and liquidity) by an amount deemed by such Lender to  of the Term Loans to be prepaid and other Pari Passu Indebtedness required to be prepaid or                be material, then from time to time the Borrower shall pay to such Lender upon demand such  redeemed or in respect of which the Borrower is required to make an offer to purchase or redeem,  collectively, exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated among          for any such reduction suffered.  the Term Loans and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of  the aggregate principal amount of Loans and Pari Passu Indebtedness to be prepaid or purchased.                  (b)   A  certificate of  a  Lender  setting forth  (i)  the amount  or  amounts  necessary  to  Upon making any prepayment required by Section 2.13(a), subject to this clause (g), the amount             compensate such Lender or its holding company, as applicable, and (ii) the calculations supporting  of Excess Proceeds shall be reset at zero.                                                                 such amount or amounts, as specified in Sections 2.14(a) or (b) shall be delivered to the Borrower                                                                                                             and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount        (h)    In the event that the Initial Funding Date has occurred and (i) the Closing Date does         shown as due on any such certificate delivered by it within 10 days after its receipt of the same.  not take place on or prior to the Longstop Date; (ii) the Acquisition Agreement is terminated at  any time prior to the Longstop Date; (iii) there is an Event of Default under Section 7.01(g) with               (c)   Failure  or  delay  on  the  part  of  any  Lender  to  demand  compensation  for  any  respect to the Borrower on or prior to the Longstop Date or (iv) the Borrower has not satisfied the        increased costs or reduction in amounts received or receivable or reduction in return on capital  Loan Escrow Condition (if applicable)                           Early Termination                          shall not constitute a                                               provided that  Date                                                               ermination Date                         the Borrower shall not be under any obligation to compensate any Lender under Sections 2.14(a)  deliver notice of the Early Termination Date to the Administrative Agent and will provide that the         or (b) with respect to increased costs or reductions with respect to any period prior to the date that  aggregate principal amount of any Term Loans outstanding at such time shall be repaid at a price           is 180 days prior to such request if such Lender knew or would reasonably have been expected to       Early Termination Amount         98.0% for such Term Loans no later than the fifth                    know of the circumstances giving rise to such increased costs or reductions and of the fact that  Business Day after the Early Termination Date.  Notwithstanding anything herein to the contrary,           such circumstances would result in a claim for increased compensation by reason of such increased  the Lenders hereby agree that upon payment of the Early Termination Amount (which the Lenders              costs or reductions; provided, further, that the foregoing limitation shall not apply to any increased  acknowledge and agree shall be less than the face value of such Term Loans), the full principal            costs or reductions arising out of the retroactive application of any Change in Law within such  amount  of  such  Term  Loans  will  be  deemed  to  have  been  paid  in  full  and  discharged.          180-day period.  The protection of this Section 2.14 shall be available to each Lender regardless  Notwithstanding  the  foregoing,  this  Section  2.13(h)  shall  not  apply,  and  no  such  below  par    of any possible contention of the invalidity or inapplicability of the Change in Law that shall have  discharge shall be available if an Event of Default under Section 7.01(g) has occurred and is              occurred or been imposed.  continuing.                                                                                                                   SECTION 2.15      Change in Legality.  (a) Notwithstanding any other provision of this        SECTION 2.14       Reserve   Requirements;   Change     in   Circumstances.                          Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any  (a) Notwithstanding any other provision of this Agreement, if any Change in Law shall impose,              Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any  modify or deem applicable any reserve, special deposit, liquidity requirement, Tax (other than             Eurodollar Loan, then, by written notice to the Borrower and to the Administrative Agent:  Indemnified Taxes and Other Taxes indemnified pursuant to Section 2.20 and Excluded Taxes) or  similar requirement against assets of, deposits with or for the account of or credit extended by any                     (i)    such Lender may declare that Eurodollar Loans will not thereafter (for  Lender  or  shall  impose  on  such  Lender  or  the  London  interbank  market  any  other  condition             the duration of such unlawfulness) be made by such Lender hereunder (or be continued  affecting this Agreement, Eurodollar Loans made by such Lender, and the result of any of the                       for additional Interest Periods) and ABR Loans will not thereafter (for such duration) be  foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar                     converted into Eurodollar Loans, whereupon any request for a Eurodollar Borrowing (or                                                                                                                     to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar                                         80                                                                                                         81  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






         Borrowing for an additional Interest Period) shall, as to such Lender only be deemed in           Eurodollar Loan prior to the end of the Interest Period in effect therefor, (ii) the conversion of any           the event of Eurodollar Borrowings, a request for an ABR Loan (or a request to continue           Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period with respect to any           an ABR Loan as such for an additional Interest Period or to convert a Eurodollar Loan             Eurodollar Loan, in each case other than on the last day of the Interest Period in effect therefor, or           into an ABR Loan, as the case may be); and                                                        (iii) any Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be made                                                                                                             pursuant to a conversion or continuation under Section 2.10) not being made after notice of such                 (ii)  such Lender may require that all outstanding Eurodollar Loans made by                 Loan shall have been given by the applicable Borrower hereunder (any of the events referred to in           it  be  converted  to  ABR  Loans,  in  which  event  all  such  Eurodollar  Loans  shall  be     this clause (a)          Breakage Event   (b) any default in the making of any payment           automatically converted to ABR Loans as of the effective date of such notice as provided          or prepayment of any Eurodollar Loan required to be made hereunder.  In the case of any Breakage           in Section 2.15(b).                                                                               Event, such loss shall include an amount equal to the excess, as reasonably determined by such                                                                                                             Lender, of  (i)  its cost of  obtaining funds  for the Eurodollar Loan  that  is  the subject  of  such        In the event any Lender shall exercise its rights under clauses (i) or (ii) above, all payments      Breakage Event for the period from the date of such Breakage Event to the last day of the Interest  and  prepayments  of principal  that  would  otherwise  have  been  applied  to  repay  the  Eurodollar    Period in effect (or that would have been in effect) for such Loan over (ii) the amount of interest  Loans  that would  have  been made by such  Lender  or the converted  Eurodollar  Loans  of such           likely to be realized by such Lender in redeploying the funds released or not utilized by reason of  Lender  shall  instead  be  applied  to  repay  the  ABR  Loans  made  by  such  Lender  in  lieu  of,  or such Breakage Event for such period.  Each Lender shall provide a certificate setting forth any  resulting from the conversion of, such Eurodollar Loans.                                                   amount or amounts which such Lender is entitled to receive pursuant to this Section 2.16 to each                                                                                                             Borrower within 180 days after the Breakage Event and such certificate shall be conclusive absent        (b)    For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be            manifest error.  effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest  Period then applicable to such Eurodollar Loan; in all other cases such notice shall be effective on             SECTION 2.17      Pro Rata Treatment.  Except as set forth in Section 2.12, as required  the date of receipt by the Borrower.                                                                       under Section 2.15 or otherwise stated herein, each Borrowing, each payment or prepayment of                                                                                                             principal of any Borrowing, each payment of interest on the Loans and each conversion of any        (c)    Each Lender on the date of this Agreement (by executing this Agreement) and each              Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated pro  Lender that becomes a party to this Agreement after the Closing Date (by executing the relevant            rata among the Lenders in accordance with their respective applicable Commitments (or, if such  Assignment and Assumption) confirms, on the date it becomes a party hereunder, that following              Commitments shall have expired or been terminated, in accordance with the respective principal  the occurrence of a Withdrawal Event by the United Kingdom as a result of the notification given  by the United Kingdom on 29 March 2017 of its intention to exit the European Union (including              of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round  in the absence of any extension of the date of such Withdrawal Event or interim agreement between                                                                                         the United Kingdom and the European Union) (and assuming no changes to any applicable law or  regulation other than changes to the laws of the United Kingdom arising from such Withdrawal                     SECTION 2.18      Sharing of Setoffs.  Each Lender agrees that if it shall, through the  Event and also assuming for the purposes of the application of any European Union Law or the                                                                 inst the Borrower or any other Loan  Laws of a member state of the European Union that the United Kingdom will no longer be a                   Party, or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or  member of the European Union), based upon information available to it on the date it becomes a             other security or interest arising from, or in lieu of, such secured claim, received by such Lender  party hereunder, that it or its branch or an Affiliate thereof will be permitted to carry out all of that  under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other                                                                                ny                           means,  obtain  payment  (voluntary  or  involuntary)  in  respect  of  any  Loan  or  Loans,  or  Borrower under the Loans in respect of which it is a Lender is or may be incorporated, organized           participations in L/C Obligations and Swing Line Loans held by it, as a result of which the unpaid  or  formed  from  time  to  time,  either  pursuant  to  its  (or  its  branch  or  Affiliate)  continued  principal portion of its Loans, or participations in L/C Obligations and Swing Line Loans held by                                                           irtue of its (or its branch or                    it, shall be proportionately less than the unpaid principal portion of the Loans of any other Lender,  Affiliate) having obtained all necessary authorizations (if any) required under all applicable laws        or participations in L/C Obligations and Swing Line Loans held by such other Lender, it shall be  and  regulations  in  each  such  jurisdiction provided  that,  no  Lender  becoming  party  to  this      deemed simultaneously to have purchased from such other Lender at face value, and shall promptly  Agreement after the occurrence of a Withdrawal Event by the United Kingdom as a result of the              pay to such other Lender the purchase price for, a participation in the Loans of such other Lender  notification given by the United Kingdom on 29 March 2017 of its intention to exit the European            (or a sub-participation in the participations in L/C Obligations and Swing Line Loans held by such  Union shall provide any confirmation as set out in this Section 2.15(c).                                   other Lender), so that the aggregate unpaid principal amount of the Loans and participations held                                                                                                             by each Lender shall be in the same proportion to the aggregate unpaid principal amount of all        SECTION 2.16       Breakage.  Each Borrower shall indemnify each Lender against any                  Loans and participations then outstanding as the principal amount of its Loans and participations  loss or expense that such Lender may sustain or incur as a consequence of (a) any event, other than  a default by such Lender in the performance of its obligations hereunder, which results in (i) such        amount of all Loans and participations ou Lender  receiving  or being deemed to  receive  any  amount on account  of the principal of any                                         82                                                                                                         83  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






or counterclaim or other event; provided, however, that (a) if any such purchase or purchases or           with that Tax Deduction within the time allowed and in the minimum amount required by law, (ii)  adjustments shall be made pursuant to this Section 2.18 and the payment giving rise thereto shall          the Administrative Agent or such Loan Party shall pay the full amount deducted to the relevant  thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent        Governmental  Authority  in  accordance  with  applicable  law,  and  (iii)  in  the  case  of  a  Tax  of such recovery and the purchase price or prices or adjustment restored without interest, and             Deduction, the sum payable by the Borrower or other Loan Party shall be increased as necessary  (b) the provisions of this Section 2.18 shall not be construed to apply to any payment made by the         so that after making all required deductions, (including deductions applicable to additional sums  Borrower pursuant to and in accordance with the express terms of this Agreement or any payment             payable under this Section 2.20) the Administrative Agent and each Lender (as the case may be)  obtained by a Lender as consideration for the assignment of or sale of a participation in any of its       receives an amount equal to the sum it would have received had no such deductions been made.  Loans to any assignee or participant, other than to any Affiliates of the Borrower (as to which the  provisions of this Section 2.18 shall apply); provided, further, that in the event that any Defaulting           (a)   In addition, and without duplication of any other amounts hereunder, the Borrower  Lender  shall  exercise  any  such  right  of  setoff,  (x)  all  amounts  so  set  off  shall  be  paid  over and  any  other  Loan  Party,  as  the  case  may  be,  shall  pay  any  Other  Taxes  to  the  relevant  immediately to the Administrative Agent for further application in accordance with the provisions          Governmental Authority in accordance with applicable law or, at the option of the Administrative  of Section 2.25 and, pending such payment, shall be segregated by such Defaulting Lender from              Agent, timely reimburse it for the payment of, any Other Taxes.  its other  funds  and deemed held in trust  for  the benefit of the Administrative Agent and the  Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a                      (b)   The Loan Parties shall jointly and severally indemnify the Administrative Agent  statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to            and  each  Lender,  within  30  days  after  written  demand  therefor,  for  the  full  amount  of  any  which  it  exercised  such  right  of  setoff.   Each  Borrower  expressly  consents  to  the  foregoing   Indemnified Taxes paid by the Administrative Agent or such Lender, as the case may be, on or  arrangements and agrees that any Lender holding a participation in a Loan deemed to have been              with respect to any payment by or on account of any obligation of the Borrower or any other Loan  so purc                                                                                                    Party hereunder or otherwise with respect to any Loan Document (including Indemnified Taxes  to any and all moneys owing by such Borrower to such Lender by reason thereof as fully as if such          imposed or asserted on  or attributable to  amounts payable under this  Section 2.20) and, to the  Lender had made a Loan directly to such Borrower in the amount of such participation.                      extent not arising due to the gross negligence or willful neglect of the Administrative Agent or                                                                                                             Lenders, any penalties, interest and reasonable expenses arising therefrom or with respect thereto,        SECTION 2.19       Payments.  (a) Each Borrower shall make each payment (including                   whether  or  not  such  Indemnified  Taxes  were  correctly  or  legally  imposed  or  asserted  by  the  principal of or interest on any Borrowing or any fees or other amounts) hereunder and under any            relevant Governmental Authority.  A certificate as to the amount of such payment or liability  other Loan Document not later than 1:00 p.m., New York City time, on the date when due in                  delivered to the Borrower by a Lender or by the Administrative Agent on behalf of itself or a  immediately available Dollars, without setoff, defense or counterclaim.  Each such payment shall           Lender shall be conclusive absent manifest error.  The Administrative Agent and each Lender shall  be made to the Administrative Agent at its offices described on Schedule 9.01(b) (or as otherwise          not  be  indemnified  for  any  Indemnified  Taxes  that  have  already  been  compensated  for  by  an  notified  by  the  Administrative  Agent  in  writing  to  such  Borrower  from  time  to  time).   Any    increased payment in accordance with Section 2.20(a) above.  payments received by the Administrative Agent after 1:00 p.m., New York City time, may, in the  Administ                                                                                                         (c)   Not later than 30 days after a Tax Deduction or any payment required in connection  Subject to Article VIII, the Administrative Agent shall promptly distribute to each Lender any             with a Tax Deduction by the Borrower or any other Loan Party to a Governmental Authority, the  payments received by the Administrative Agent on behalf of such Lender.                                    Borrower shall deliver to the Administrative Agent evidence reasonably satisfactory that the Tax                                                                                                             Deduction has been made or (as applicable) that any appropriate payment to the Governmental        (a)    Except as otherwise expressly provided herein, whenever any payment (including                Authority has been paid.  principal of or interest on any Borrowing or any fees or other amounts) hereunder or under any  other Loan Document shall become due, or otherwise would occur, on a day that is not a Business                  (d)   (i) Any Lender that is entitled to an exemption from or reduction of withholding  Day, such payment may be made on the next succeeding Business Day, and such extension of time              Tax with respect to payments made under any Loan Document shall deliver to the Borrower and  shall in such case be included in the computation of interest or fees, if applicable.  Except as           the  Administrative  Agent,  at  the  time  or  times  reasonably  requested  by  the  Borrower  or  the  otherwise expressly provided herein, all fees referred to herein (including in Sections 2.05, 2.26(h)      Administrative Agent, such properly completed and executed documentation reasonably requested  and 2.26(i)) shall be calculated on the basis of a 360-day year and the actual number of days              by the Borrower or the Administrative Agent as will permit such payments to be made without  elapsed.                                                                                                   withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested                                                                                                             by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed        SECTION 2.20       Taxes.  (a) Any and all payments by or on account of any obligation               by applicable law or reasonably requested by the Borrower or the Administrative Agent as will  of the Borrower or any other Loan Party hereunder or under any other Loan Document shall, except           enable  the  Borrower  or  the  Administrative  Agent  to  determine  whether  or  not  such  Lender  is  to  the  extent  required  by  law,  be  made  without  any  Tax  Deduction;  provided  that,  if  any     subject to backup withholding or information reporting requirements.  Notwithstanding anything  Indemnified Taxes are required to be deducted from such payments, then (i) the Administrative              to the contrary in the preceding two sentences, the completion, execution and submission of such  Agent or such Loan Party shall make such Tax Deduction and any payment required in connection              documentation (other than such documentation set forth in clause (ii)(A) and (ii)(B) below) shall                                          84                                                                                                         85  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






not be requir                                                                                                                8ECI, IRS Form W-8BEN or W-BEN-E, a U.S. Tax Compliance Certificate  would subject such Lender to any material unreimbursed cost or expense or would materially                                   substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9,  prejudice  the  legal  or  commercial  position  of  such  Lender,  (it  being  understood  that  the                        and/or  other  certification  documents  from  each  beneficial  owner,  as  completion,  execution  and  submission  of  any  documentation  no  more  burdensome  than  that                            applicable; provided that if the Foreign Lender is a partnership and one or  required  for  U.S.  federal  income  tax  withholding  will  not  give  rise  to  an  exception  from  the                  more direct or indirect partners of such Foreign Lender are claiming the  preceding sentence or otherwise be considered prejudicial to the position of a Lender).                                      portfolio interest exemption, such Foreign Lender may provide a U.S. Tax                                                                                                                               Compliance Certificate substantially in the form of Exhibit H-4 on behalf                 (i)   Without limiting the generality of the foregoing,                                                       of each such direct and indirect partner;                      (A)   any Lender that is a U.S. Person shall deliver to the Borrower and                                  (C)   any Foreign Lender shall, to the extent it is legally entitled to do so,               the Administrative Agent on or prior to the date on which such Lender becomes a                           deliver to the Borrower and the Administrative Agent (in such number of copies as               Lender under this Agreement (and from time to time thereafter upon the reasonable                         shall be requested by the recipient) on or prior to the date on which such Foreign               request of the Borrower or the Administrative Agent), executed copies of IRS Form                         Lender becomes a Lender under this Agreement (and from time to time thereafter               W-9 certifying that such Lender is exempt from U.S. federal backup withholding                            upon the reasonable request of the Borrower or the Administrative Agent), executed               tax;                                                                                                      copies  of  any  other  form  prescribed  by  applicable  law  as  a  basis  for  claiming                                                                                                                         exemption from or a reduction in U.S. federal withholding Tax, duly completed,                     (B)   any Foreign Lender shall, to the extent it is legally entitled to do so,                      together  with  such  supplementary  documentation  as  may  be  prescribed  by               deliver to the Borrower and the Administrative Agent (in such number of copies as                         applicable law to permit the Borrower or the Administrative Agent to determine the               shall be requested by the recipient) on or prior to the date on which such Foreign                        withholding or deduction required to be made.               Lender becomes a Lender under this Agreement (and from time to time thereafter               upon  the  reasonable  request  of  the  Borrower  or  the  Administrative  Agent),                             (D)   Each Lender agrees that if any form or certification it previously               whichever of the following is applicable:                                                                 delivered expires or becomes obsolete or inaccurate in any respect, it shall update                                                                                                                         such  form  or  certification,  provide  any  necessary  successor  form,  or  promptly                           (1)   in the case of a Foreign Lender claiming the benefits of an                             notify the Borrower and the Administrative Agent in writing of its legal inability to                     income tax treaty to which the United States is a party (x) with respect to                         do so.                     payments of interest under any Loan Document, executed copies of IRS                     Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction                          (e)   If a payment made to a Lender under any Loan Document would be subject to U.S.                                                                                                             federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the                     tax treaty and (y) with respect to any other applicable payments under any              applicable  reporting  requirements of FATCA (including  those contained in Section 1471(b) or                     Loan  Documents,  IRS  Form  W-8BEN  or  W-8BEN-E  establishing  an                     1472(b)  of  the  Code,  as  applicable),  such  Lender  shall  deliver  to  the  Borrower  and  the                     exemption from, or reduction of, U.S. federal withholding Tax pursuant to               Administrative Agent at the time or times prescribed by law and at such time or times reasonably                                                                                                             requested  by  the  Borrower  or  the  Administrative  Agent  such  documentation  prescribed  by                                                                                                             applicable  law  (including  as  prescribed  by  Section  1471(b)(3)(C)(i)  of  the  Code)  and  such                           (2)   executed copies of IRS Form W-8ECI;                                         additional documentation reasonably requested by the Borrower or the Administrative Agent, as                                                                                                             may be necessary for the Borrower and the Administrative Agent to comply with their obligations                           (3)   in the case of a Foreign Lender claiming the benefits of the                     exemption for portfolio interest under Section 881(c) of the Code, (x) a                under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for                     certificate substantially in the form of Exhibit H-1 to the effect that such            purposes of this clause (f)                                                                                                            date of this Agreement.                      of Section 881(c)(3)(B) of the Code,                                                          (f)   On or before the date the Administrative Agent becomes a party to this Agreement,                                                               U.S. Tax Compliance                           the Administrative Agent shall provide to the Borrower, two duly signed, properly completed                     Certificate                                 -8BEN or W-8BEN-                            copies of the documentation prescribed in clause (i) or (ii) below, as applicable (together with all                     E; or                                                                                   required attachments thereto):  (i) IRS Form W-9 or any successor thereto, or (ii) (A) IRS Form                                                                                                             W-8ECI or any successor thereto, and (B) with respect to payments received on account of any                           (4)   to the extent a Foreign Lender is not the beneficial owner,                 Lender, a U.S. branch withholding certificate on IRS Form W-8IMY or any successor thereto                     executed  copies  of  IRS  Form  W-8IMY,  accompanied  by  IRS  Form  W-                                        86                                                                                                         87  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






evidencing  its  agreement  with  the  Borrower  to  be  treated  as  a  U.S.  Person  for  U.S.  federal  interest accrued to the date of such payment on the outstanding Loans of such Lender plus all fees  withholding purposes.  At any time thereafter, the Administrative Agent shall provide updated              and  other  amounts  accrued  for  the  account  of  such  Lender  hereunder  with  respect  thereto  documentation  previously  provided  (or,  a  successor  form  thereto)  when  any  documentation          (including  any amounts  under Sections 2.14 and 2.16 and, in the case of any such assignment  previously delivered has expired or become obsolete or invalid or otherwise upon a reasonable              occurring in connection with a Repricing Transaction occurring prior to the 12-month anniversary  request of the Borrower.                                                                                   of the Initial Funding Date, the prepayment fee pursuant to Section 2.12(d) (with such assignment                                                                                                             being  deemed  to  be  a  voluntary  prepayment for purposes of  determining  the applicability  of        (g)    If any party determines, in its sole discretion exercised in  good faith, that it has         Section 2.12(d), such amount to be payable by the Borrower)), or (B) terminate the Commitment  received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.20           of such Lender and (x) in the case of a Lender other than an L/C Issuer, repay all Obligations of  (including by the payment of additional amounts pursuant to this Section 2.20 it shall pay to the          the Borrower owing to such Lender relating to the Loans and participations held by such Lender  indemnifying party an amount equal to such refund (but only to the extent of indemnity payments            as of such termination date and (y) in the case of an L/C Issuer, repay all Obligations of the  made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-          Borrower owing to such L/C Issuer relating to the Loans and participations held by such L/C Issuer  pocket expenses (including Taxes) of such indemnified party and without interest (other than any           as of such termination date and Cash Collateralize, cancel or backstop, or provide for the deemed  interest  paid  by  the  relevant  Governmental  Authority  with  respect  to  such  refund).   Such       reissuance under another facility, on terms satisfactory to such L/C Issuer any Letters of Credit  indemnifying party, upon the request of such indemnified party the amount paid over pursuant to            issued by it; provided, further, that if prior to any such transfer and assignment the circumstances  this  paragraph  (h)  (plus  any  penalties,  interest  or  other  charges  imposed  by  the  relevant                                                               Section 2.14, notice under  Governmental Authority) in the event that such indemnified party is required to repay such refund          Section 2.15 or the amounts paid pursuant to Section 2.20, as the case may be, cease to cause such  to such Governmental Authority.  Notwithstanding anything to the contrary to this paragraph (h),           Lender to suffer increased costs or reductions in amounts received or receivable or reduction in  in no event will the indemnified party be required to pay any amount to an indemnifying party              return on capital, or cease to have the consequences specified in Section 2.15, or cease to result in  pursuant  to  paragraph  (h)  the  payment  of  which  would  place  the  indemnified  party  in  a  less  amounts being payable under Section 2.20, as the case may be (including as a result of any action  favorable net after-Tax position than the indemnified party would have been in if the Tax subject          taken by such Lender pursuant to Section 2.21(b)), or if such Lender shall waive its right to claim  to indemnification and giving rise to such refund had not been deducted, withheld or otherwise             further  compensation  under  Section  2.14  in  respect  of  such  circumstances  or  event  or  shall  imposed and the indemnification payments or additional amounts with respect to such Tax had                withdraw its notice under Section 2.15 or shall waive its right to further payments under Section  never been paid.  This paragraph (h) shall not be construed to require any indemnified party to            2.20 in respect of such circumstances or event or shall consent to the proposed amendment, waiver,  make  available  its  Tax  returns  (or  any  other  information  relating  to  its  Taxes  that  it  deems consent or other modification, as the case may be, then such Lender shall not thereafter be required  confidential) to the indemnifying party or any other Person.                                               to  make  any  such  transfer  and  assignment  hereunder.   Each  Lender  hereby  grants  to  the                                                                                                             Administrative Agent an irrevocable power of attorney (which power is coupled with an interest)        SECTION 2.21       Assignment of Commitments Under Certain Circumstances; Duty                       to execute and deliver, on behalf of such Lender, as assignor, any Assignment and Acceptance  to Mitigate.  (a) In the event (i) any Lender delivers a certificate requesting compensation pursuant      necessary to effectuate any assignment of  to Section 2.14, (ii) any Lender delivers a notice described in Section 2.15, (iii) the Borrower is        contemplated by this Section 2.21(a).  required to pay any additional amount to any Lender or any Governmental Authority on account  of any Lender pursuant to Section 2.20, (iv) any Lender is a Non-Consenting Lender or (v) any                    (a)   If (i) any Lender shall request compensation under Section 2.14, (ii) any Lender  Lender becomes a Defaulting Lender, then, in each case, the Borrower may, at its sole expense              delivers a notice described in Section 2.15 or (iii) the Borrower is required to pay any additional  and effort (including with respect to the processing and recordation fee referred to in  Section           amount  to  any  Lender  or  any  Governmental  Authority  on  account  of  any  Lender  pursuant  to  9.04(b)), upon notice to such Lender and the Administrative Agent, (A) require such Lender to              Section 2.20, then such Lender or Administrative Agent shall use reasonable efforts (which shall  transfer and assign, without recourse (in accordance with and subject to the restrictions contained        not require such Lender or Administrative Agent to incur an unreimbursed loss or unreimbursed  in Section 9.04), all of its interests, rights and obligations under this Agreement (or, in the case of    cost or expense or otherwise take any action inconsistent with its internal policies or legal or  clause (iv) above, all of its interests, rights and obligations with respect to the Class of Loans or      regulatory restrictions or suffer any disadvantage or burden deemed by it to be significant) (x) to  Commitments that is the subject of the related consent, amendment, waiver or other modification)           file any certificate or document reasonably requested in writing by the Borrower or (y) to assign  to an Eligible Assignee that shall assume such assigned obligations and, with respect to clause (iv)       its rights and delegate and transfer its obligations hereunder to another of its offices, branches or  above, shall consent to such requested amendment, waiver or other modification of any  Loan                affiliates, if such filing or assignment would reduce its claims for compensation under Section 2.14  Documents  (which  assignee  may  be  another  Lender,  if  a  Lender  accepts  such  assignment);         or enable it to withdraw its notice pursuant to Section 2.15 or would reduce amounts payable  provided that (x) such assignment shall not conflict with any law, rule or regulation or order of          pursuant to Section 2.20, as the case may be, in the future.  The Borrower hereby agrees to pay all  any  court  or  other  Governmental  Authority  having  jurisdiction,  (y)  the  Borrower  shall  have     reasonable  costs  and  expenses  incurred  by  any  Lender  in  connection  with  any  such  filing  or  received  the  prior  written  consent  of  the  Administrative  Agent,  which  consent  shall  not        assignment, delegation and transfer.  unreasonably be withheld or delayed, and (z) the Borrower or such assignee shall have paid to the  affected Lender in immediately available funds an amount equal to the sum of the principal of and                                         88                                                                                                         89  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






      SECTION 2.22       Incremental Loans.  (a) The Borrower may, by written notice to the                have consented to such additional banks, financial institutions and other institutional lenders to the  Administrative  Agent and  the  Person  appointed  by the  Borrower  to  arrange  Incremental  Loan        extent the consent of the Borrower or the Administrative Agent, as applicable, would be required  Commitments (such Person (who may be (i) the Administrative Agent, if it so agrees, or (ii) any            if such institution were receiving an assignment of Loans pursuant to  Section 9.04 (provided,  other Person appointed by the Borrower after consultation with the Administrative Agent), the              further, that the consent of the Administrative Agent shall not be required with respect to an   Incremental  Arranger                                     ore  existing  or  additional                   additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or  Lenders, all of which must be Eligible Assignees:  (A) one or more new commitments for new                 a Related Fund), (ii) with respect to Incremental Term Loan Commitments, any Affiliated Lender  Term Loans which may be of the same Class as any outstanding Class of Term Loans or a new                  providing an Incremental Term Loan Commitment shall be subject to the same restrictions set  Class of Term Loans ( Incremental Term Loan Commitments        (B) the establishment                       forth in Section 9.04 as they would otherwise be subject to with respect to any purchase by or                                                                        Incremental                          assignment to such Affiliated Lender of Term Loans and (iii) Affiliated Lenders may not provide  Revolving  Credit  Commitments                                      Commitments,                           Incremental Revolving Credit Commitments.  The Borrower and each Incremental Lender shall                                                                  Incremental  Loan                          execute and deliver to the Administrative Agent and the Incremental Arranger an Incremental Loan  Commitments                                                                                                Assumption  Agreement  and  such  other  documentation  as  the  Incremental  Arranger  shall  Incremental Revolving Credit Commitments, assuming a borrowing of the maximum amount of                    reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender.   Incremental  Revolving Credit  Loans  available); provided  that  Incremental  Loan  Commitments           The Other Loans and any Incremental Revolving Credit Commitments providing for Incremental  may be incurred in the Available Currency or an alternative currency pursuant to procedures and                                                                   Other Revolving Credit Loan  on terms to be agreed with the applicable Incremental Arranger and the Administrative Agent.               Commitments                Other Revolving Credit Loans (i) shall have fees and margin  The Incremental Arranger shall promptly deliver a copy of such notice to each of the Lenders and           and/or interest  rate  determined  by  the  Borrower  and  the  Incremental  Lenders  providing such  the Administrative Agent.  Such notice shall set forth (i) the amount of the Incremental Loan              Loans, (ii) shall rank pari passu in right of payment with the Loans or Commitments existing prior  Commitments  being  requested  (which  shall  be  in  minimum  increments of,  $1,000,000  and  a          the  incurrence  of  such  Other  Loans  and  Other  Revolving  Credit  Loan  Commitments  and  be  minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by                secured by the Collateral on a pari passu basis and (iii) (A) in the case of Incremental Term Loans,  the  Incremental  Arranger  in  its  reasonable  discretion),  or  such  lesser  amount  equal  to  the    (x) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any  Incremental  Loan  Amount  at  such  time),  (ii)  the  date  on  which  such  Incremental  Loan           mandatory  prepayment  of  Term  Loans  (except  that,  unless  otherwise  permitted  under  this  Commitments are requested to become effective (which shall not be less than 10 Business Days               Agreement, such Incremental Term Loans may not participate on a greater than pro rata basis as  (or such shorter period as agreed by the Incremental Arranger) after the date of such notice), and         compared to any earlier maturing Class of Term Loans) and (y) may participate on a pro rata basis,  (iii) whether such Incremental Loan Commitments are commitments to make additional Loans of                less than pro rata basis or greater than pro rata basis in any voluntary prepayment of Term Loans  the same Class which shall be extended in a manner so as to be fungible with an existing Class of          and (B) in the case of Incremental Revolving Credit Commitments and Incremental Revolving  Loans hereunder or commitments to make Loans with terms different from such Loans which shall              Loans, (x) shall provide that the borrowing and repayment (except for (A) payments of interest                                          Other Loans                                                        and  fees  at  different  rates  on  Incremental  Revolving  Credit  Commitments  (and  related  in  any  Incremental  Loan  Assumption  Agreemen Incremental  Facility  Closing  Date                      outstandings),  (B)  repayments  required  upon  the  Maturity  Date  of  the  Incremental  Revolving  subject only to the satisfaction of the terms and conditions in this Section 2.22 and in the applicable    Credit Commitments and (C) repayment made in connection with a permanent repayment and  Incremental Loan Assumption Agreement, (A) (1) each Incremental Term Lender of such Class                  termination of commitments (subject to clause (y) below)) of Loans with respect to Incremental                                     Incremental Term Loan                                                   Revolving Credit Commitments after the associated Incremental Facility Closing Date shall be  Incremental Term Loan Commitment of such Class and (2) each Incremental Term Lender of such                made on a pro rata basis or less than pro rata basis (but not more than a pro rata basis) with all  Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment                 other Revolving Credit Commitments then existing on the Incremental Facility Closing Date and  of such Class and the Incremental Term Loans of such Class made pursuant thereto and (B) (1)               (y) may provide that the permanent repayment of Revolving Credit Loans with respect to, and  each Incremental Revolving Credit Lender of such Class shall make its Commitment available to              termination  or  reduction  of,  Incremental  Revolving  Credit  Commitments  after  the  associated  the  Borrower  (when  borrowed,  an Incremental  Revolving  Loan                                           Incremental Facility Closing Date be made on a pro rata basis, less than pro rata basis or greater                          Incremental Loan                                                                   than pro  rata basis with all other Revolving Credit Commitments.  Without the prior written  Credit Commitment of such Class and (2) each Incremental Revolving Credit Lender of such Class             consent of the Administrative Agent, (A) the final maturity date of any Other Loans that are Term  shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment                          Other Term Loans of such Class and the Incremental Revolving Loans of such Class made pursuant thereto.                     the final maturity date of any Other Revolving Credit  Loans or Other Revolving Credit  Loan                                                                                                             Commitments shall be no earlier than the Initial Revolving Credit Commitment Maturity Date,        (a)    The Borrower may seek Incremental Loan Commitments from existing Lenders                      (C) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the  (each  of  which  shall  be  entitled  to  agree  or  decline  to  participate  in  its  sole  discretion)  and remaining Weighted Average Life to Maturity of the Initial Term Loans, (D) the All-In Yield  additional banks, financial institutions and other institutional lenders who will become Incremental       applicable to the Other Loans shall be determined by the Borrower and the applicable Incremental  Lenders in connection therewith; provided that (i) the Borrower and the Administrative Agent shall         Lenders  and  shall  be  set  forth  in  each  applicable  Incremental  Loan  Assumption  Agreement;                                         90                                                                                                         91  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






provided, however, that the All-In Yield applicable to such Other Term Loans of the same currency          Subsidiaries that are Guarantors, and the obligations in respect thereof shall not be secured by any  as the Initial Term Loans shall not be greater than the applicable All-In Yield payable pursuant to        property or assets of the Borrower or any Restricted Subsidiary other than the Collateral.  the terms of this Agreement as amended through the date of such calculation with respect to the  Initial  Term  Loans  plus  50  basis  points per annum  unless  the interest rate (together with,  as           (b)   Notwithstanding the foregoing, no Incremental  Loan Commitment shall become  provided in the proviso below, the Adjusted  LIBO Rate floor) with respect to such  Loans  is              effective under this Section 2.22 unless on the date of such effectiveness (or earlier, as determined  increased so as to cause the then applicable All-In Yield under this Agreement on such Loans to            in accordance with Section 1.05, in the case of an Incremental Loan Assumption Agreement the  equal the All-In Yield then applicable to the Other Term Loans minus 50 basis points; provided             primary purpose of which is to finance a Limited Condition Transaction), (i) (x) the representations  that any increase in All-In Yield to any Loan due to the application or imposition of an Adjusted          and warranties set forth in Article III and in each other Loan Document shall be true and correct  LIBO Rate floor or an Alternate Base Rate floor on any Other Term Loans shall be effected, at the          in all material respects (or in all respects to the extent qualified by materiality or Material Adverse                n, (x) through an increase in (or implementation of, as applicable) any Adjusted             Effect) on and as of such date with the same effect as though made on and as of such date, except  LIBO Rate floor or Alternate Base Rate floor, as applicable, applicable to such Loan, (y) through          to the extent such representations and warranties expressly relate to an earlier date, in which case  an increase in the Applicable Margin for such Loan or (z) any combination of (x) and (y) above,            such  representations  and  warranties  shall be  true  and  correct  in  all  material  respects  (or  in  all  and (E) the other terms and documentation in respect of such Other Loans (except for covenants             respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier  or  other  provisions  (i) conformed  (or  added)  in  the  Loan  Documents  pursuant  to  the  related    date;  provided  that,  with respect  to  any  Incremental  Loan Assumption  Agreement  the  primary  Incremental Loan Assumption Agreement for the benefit of all of the Lenders; provided that (x)             purpose of which is to finance a Limited Condition Transaction, a Permitted Investment or an  in the case of any Class of Incremental Term Loans and Incremental Term Loan Commitments,                  acquisition not prohibited by this Agreement, the condition set forth in this sub-clause (i)(x) shall      -                                                                                                      only be required to the extent included (and in the form set forth in) the relevant Incremental Loan  of any Class of Incremental Revolving Loans and Incremental Revolving Credit Commitments,                  Assumption Agreement (and, if included, may be waived by Incremental Lenders holding more  financial maintenance covenants may  be added  solely for the benefit of the Revolving Credit              than  50%  of  the  applicable  aggregate  Incremental  Loan  Commitments);  and  (y)  no  Event  of  Lenders or (ii) applicable only to periods after the Latest Maturity Date as of the Incremental            Default shall have occurred and be continuing; provided that (other than in the case of an Event of  F                                Additional Covenants                                                      Default specified in Section 7.01(a) and (g)), the condition in this sub-clause (i)(x) may be waived  consent of any other party)), to the extent not consistent with the Term Facilities or the Revolving       by Incremental Lenders holding more than 50% of the applicable aggregate Incremental Loan  Credit  Facilities,  as  applicable,  shall  be  reasonably  satisfactory  to  the  Incremental  Arranger; Commitments, and the Administrative Agent shall have received a certificate to that effect dated  provided that such other terms and documentation shall be deemed to be reasonably satisfactory             such date and executed by a Responsible Officer of the Borrower, (ii) all fees and expenses owing  to such Incremental Arranger if they reflect market terms and conditions (taken as a whole) at the         to the Administrative Agent in respect of such increase shall have been paid, (iii) the Incremental  time of incurrence of such Other Loans (as determined by the Borrower in good faith)).  The                Arranger  shall  have  received  legal  opinions  addressed  to  the  Incremental  Lenders  and  the  Incremental Arranger shall promptly notify each Lender that has Incremental Loan Commitments               Incremental Arranger, board resolutions and other closing certificates reasonably requested by the  and the Borrower as to the effectiveness of each Incremental Loan Assumption Agreement and                 Incremental Arranger and consistent with those delivered on the Initial Funding Date under Section  each such effective Incremental Loan Assumption Agreement may be provided to the Lenders and               4.02, other than changes to such legal opinions resulting from a change in law, change in fact or  the Administrative Agent.  Notwithstanding anything in Section 9.08 to the contrary, each of the                                                                                        (iv)  parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption               the Incremental Arranger shall have received reaffirmation agreements and/or such amendments  Agreement, (i) this Agreement shall be deemed amended to the extent (but only to the extent)               to the Security Documents as may be reasonably requested by the Incremental Arranger in order  necessary  to  reflect  the  existence  and  terms  of  the  Incremental  Loan  Commitment  and  the       to ensure that such Incremental Lenders are provided with the benefit of the applicable Loan  Incremental Loans evidenced thereby including the Additional Covenants, (ii) each Incremental              Documents.  Loan Assumption Agreement may, without the consent of any other Loan Party, Agent or Lender,  effect such amendments to this Agreement and the other Loan Documents as may be necessary or                     (c)   Each of the parties hereto hereby agrees that the Administrative Agent and the  appropriate, in the reasonable opinion of the applicable Incremental Arranger and the Borrower,            Incremental Arranger, as applicable, may, in consultation with the Borrower, take any and all  to  effect  the  provisions  of  this  Section  2.22,  including  to  effect  technical  and  corresponding action as may be reasonably necessary to ensure that all Incremental Loans (other than Other  amendments  to  this Agreement and  the  other  Loan Documents  and  (iii) at  the option of the           Loans), when originally made, are included in each Borrowing of outstanding Loans of the same  Borrower in consultation with the applicable Incremental Arranger, incorporate terms that would            currency on a pro rata basis.  This may be accomplished by requiring each outstanding Eurodollar  be favorable to existing Lenders of the applicable Class or Classes for the benefit of such existing       Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by  Lenders of the applicable Class or Classes, in each case under this clause (ii), so long as the            allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro  applicable  Incremental  Arranger  reasonably  agrees  that  such  modification  is  favorable  to  the    rata basis.  Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence  applicable Lenders.  Incremental Loans and Other Loans shall rank pari passu in right of payment           (unless,  solely  with  respect  to  Incremental  Lenders,  as  otherwise  agreed  by  the  Incremental  and security (but without regard to the control of remedies) with the other Obligations under this         Lenders) shall be subject to Section 2.16.  If any Incremental Loan is to be allocated to an existing  Agreement,  shall  not  at any  time  be guaranteed  by  any  Subsidiary  of the Borrower  other than      Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period                                         92                                                                                                         93  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






and the other economic consequences thereof shall be as set forth in the applicable Incremental                             Original  Revolving  Credit  Commitments Loan  Assumption  Agreement.   In  addition, to the  extent  any Incremental  Loans  are  not  Other                     Original Class Loans and are fungible with any other Class of Term Loans, the scheduled amortization payments             for other terms permitted by this Section 2.23 (any portion thereof that have been so extended, the  under  Section  2.11(a)(i)  required  to  be  made  to  such  other  Class  after  the  making  of  such    Extended Term Loans    Extended Revolving Credit Commitments Incremental Loans may be ratably increased by the aggregate principal amount of such Incremental                         Extended Class                                  Non-Extended Term  Loans and may be further increased for all Lenders of such other Class on a pro rata basis to the          Loans    Non-Extended Revolving Credit Commitments extent necessary to avoid any reduction in the amortization payments to which the Lenders of such              Non-Extended  Class other Class were entitled before such recalculation.                                                       Extended  Term  Loans  or  Extended  Revolving  Credit  Commitments,  as  applicable,  may  be                                                                                                             designated as part of an existing Class of Loans.  Prior to entering into any Extension Amendment        (d)    Upon  any  Incremental  Facility  Closing  Date  on  which  Incremental  Revolving            with respect to any Original Class, the Borrower shall appoint a Person that is a financial institution  Credit Commitments are effected through an increase of an existing Loan pursuant to this Section           or  Affiliate  thereof  to  arrange  the  Extended  Term  Loans   or  Extended  Revolving  Credit  2.22, (i) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving           Commitments (who may be (i) the Administrative Agent, or (ii) any other Person appointed by the  Credit Lenders, and each of the Incremental Revolving Credit Lenders shall purchase from each              Borrower  in  consultation  with  the  Admi            Extension  Arranger of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Incremental        Extension  Arranger  shall  provide  a  copy  of  such  notice  to  each  Lender  who  has  Loans  or  Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in             Commitments of the Original Class and the Administrative Agent in such form as approved from  order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans         time  to  time  by  the  Borro                                         Extension  will  be  held  by  existing  Revolving  Credit  Lenders  and  Incremental  Revolving  Credit  Lenders     Request ratably in accordance with their Revolving Credit Commitments after giving effect to the addition          be  identical  to  those  applicable  to  the  Original  Class,  except  for  Section  2.23  Additional  of  such  Incremental  Revolving  Credit  Commitments  to  the  Revolving  Credit  Commitments,            Agreements or as otherwise permitted by this Section 2.23 and except (w) the maturity date of the  (ii) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving             Extended Class may be delayed to a date after the Maturity Date of the Original Class, (x) Extended  Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving             Term Loans may have different amortization payments than the Original Term Loans; provided  Credit  Loan  and  (iii)  each  Incremental  Revolving  Credit  Lender  shall  become  a  Lender  with     that the Weighted Average Life to Maturity of such Extended Term Loans shall be no shorter than  respect to the Incremental Revolving Credit Commitments and all matters relating thereto.  The             the  Weighted  Average  Life  to  Maturity  of  the  Original  Term  Loans  from  which  they  were  Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment                converted, (y) All-In Yield with respect to any Loans or Commitments of the Extended Class may  requirements in Sections 2.02 and  2.09 of this  Agreement shall not  apply to  the transactions           be higher or lower than the All-In Yield with respect to any Loans or Commitments of the Original  effected pursuant to the immediately preceding sentence.                                                   Class and (z) (A) the Extended Term Loans (i) may participate on a pro rata basis, less than pro                                                                                                             rata basis or greater than pro rata basis in any mandatory prepayment of Term Loans (except that,        (e)    Other Revolving  Credit  Loan  Commitments  may  be  elected  to  be  included  as            unless otherwise permitted under this Agreement, such Extended Term Loans may not participate  additional Participating Revolving Credit Commitments under the applicable Incremental Loan                on a greater than pro rata basis as compared to any earlier maturing Class of Term Loans) and (ii)  Assumption Agreement, subject to the consent of each Swing Line Lender and each L/C Issuer,                may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any  and  on  the  Incremental  Facility  Closing  Date  on  which  such  Incremental  Revolving  Credit        voluntary prepayment of Term Loans, and (B) the Extended Revolving Credit Commitments (i)  Commitments are effected, all Swing Line Loans and Letters of Credit shall be participated on a            shall provide that the borrowing and repayment (except for (A) payments of interest and fees at  pro rata basis by all Participating Revolving Credit Lenders in accordance with their percentage           different  rates  on  Extended  Revolving  Credit  Commitments  (and  related  outstandings),  (B)  of the Participating Revolving Credit Commitments existing after giving effect to such Incremental         repayments required upon the Maturity Date of the Extended Revolving Credit Commitments and  Loan  Assumption  Amendment,  provided,  such  election  may  be  made  conditional  upon  the             (C) repayment made in connection with a permanent repayment and termination of commitments  termination of one or more other Participating Revolving Credit Commitments.                               (subject to clause (ii) below)) of Loans with respect to Extended Revolving Credit Commitments                                                                                                             after the associated Extended Facility Closing Date shall be made on a pro rata basis or less than        (f)    This Section  2.22  shall  supersede  any provisions in  Section  2.17  or  9.08  to  the     pro rata basis (but not more than a pro rata basis) with all other Revolving Credit Commitments  contrary.                                                                                                  then existing on the Extended Facility Closing Date and (ii) may provide that the permanent                                                                                                             repayment of Revolving Credit Loans with respect to, and termination or reduction of, Extended        SECTION 2.23       Extension Amendments.  (a) So long as no  Event of Default has                                                                                                             Revolving Credit Commitments after the associated Extended Facility Closing Date be made on a  occurred  and  is  continuing  (after  giving  effect  to  any  amendments  and/or  waivers  that  are  or                                                                                                             pro rata basis, less than pro rata basis or greater than pro rata basis with all other Revolving  become effective on the date of the relevant conversion), the Borrower may at any time and from                                                                                                             Credit Commitments.  In addition to any other terms and changes required or permitted by this  time to time request that (i) all or a portion of any Class of Term Loans then outstanding selected                                                                                                             Section 2.23, each Extension Amendment establishing a Class of Extended Term  Loans shall                    Original Term Loans       (ii) all or a portion of any Class of Revolving                                                                                                             amend the  scheduled amortization payments  provided under  Section  2.11  with  respect  to  the  Credit  Commitments  then  outstanding  selected  by  the  Borrower  (such  Revolving  Credit                                                                                                             related Non-Extended Term Loans to reduce each scheduled installment for such Non-Extended                                         94                                                                                                         95  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






Term Loans to an aggregate amount equal to the product of (A) the original aggregate amount of             applicable  Extension  Arranger  (the  date  on  which  such  conditions,  together  with  any  other  such  installment  with  respect  to  the  Original  Term  Loans,  multiplied  by  (B)  a  fraction,  the  conditions  set  forth  in  the  Extension  Amendment,  are  satisfied  shall  be  referred  to  as  the   numerator of which is the aggregate principal amount of such related Non-Extended Term Loans                Extended Facility Closing Date   and (C) the denominator of which is the aggregate principal amount of such Original Term Loans  prior to the effectiveness of such Extension Amendment (it being understood that the amount of                   (c)   Any Extension Amendment may provide for additional terms, including different  any installment payable with respect to any individual Non-Extended Term Loan shall not be                 covenants and call protection (other than those referred to or contemplated in this Section 2.23)  reduced as a result thereof without the consent of the holder of such individual Non-Extended                      Section 2.23 Additional Agreement Term Loan).  No Lender shall have any obligation to agree to have any of its Original Term Loans           provided that no such Section 2.23 Additional Agreement shall become effective prior to the time  or Original Revolving Credit Commitments converted into Extended Term Loans or Extended                    that such Section 2.23 Additional Agreement has been consented to by such of the Lenders, Loan  Revolving Credit Commitments pursuant to any Extension Request.                                            Parties and other parties (if any) as would be required (including under the requirements of Section                                                                                                             9.08) if such Section 2.23 Additional Agreement were a separate and independent amendment of        (a)    The Borrower shall provide the applicable Extension Request at least five Business            this Agreement.  Days prior to the date on which the applicable Lenders are requested to respond (or such shorter                                                                 Extending Lender                                  (d)   Notwithstanding  anything  to  the  contrary  in  Section  9.08,  (i)  each  Extension  wishing  to  have  all  or  a  portion  of  its  Original  Term  Loans  or  Original  Revolving  Credit    Amendment may, without the consent of any other Loan Party, Agent or Lender, effect such  Commitments converted into Extended Term Loans or Extended Revolving Credit Commitments                    amendments to this Agreement and the other Loan Documents as may be necessary or appropriate,  shall notify the applicable Extension Arranger (such notice to be in such form as approved from            in the reasonable opinion of the applicable Extension Arranger and the Borrower, to effect the                                                            Extension Election                               provisions of this Section 2.23, including to effect technical and corresponding amendments to this  prior to the date specified in such Extension Request (which shall in any event be no less than three      Agreement and the other Loan Documents and (ii) at the option of the Borrower in consultation  Business Days prior to the effectiveness of the applicable Extension Amendment unless otherwise            with  the applicable Extension Arranger  incorporate terms  that  would  be favorable to  existing  agreed by the Borrower) of the amount of its Original Term Loans or Original Revolving Credit              Lenders of the applicable Class or Classes for the benefit of such existing Lenders of the applicable  Commitments that it has elected to convert into Extended Term Loans or Extended Revolving                  Class or Classes, in each case under this clause (ii), so long as the applicable Extension Arranger  Credit Commitments.  In the event that the aggregate amount of the applicable Original Term                reasonably agrees that such modification is favorable to the applicable Lenders.  Loans or Original Revolving Credit Commitments subject to Extension  Elections exceeds the  amount  of  the  applicable  Extended  Term  Loans  or  Extended  Revolving  Credit  Commitments                 (e)   This Section  2.23  shall  supersede  any provisions in  Section  2.17  or  9.08  to  the  requested pursuant  to the Extension Request, the applicable Original Term  Loans  or Original             contrary.  Revolving  Credit  Commitments  subject  to  such  Extension  Elections  shall  be  converted  to  Extended Term Loans or Extended Revolving Credit Commitments on a pro rata basis based on                        SECTION 2.24      Refinancing  Amendments.   (a) Refinancing  Commitments.   The  the amount of the applicable Original Term Loans or Original Revolving Credit Commitments                  Borrower may, at any time or from time to time, by notice to any Person appointed by the Borrower  included in each such Extension Election.                                                                  to arrange Refinancing Commitments (such Person (who may be (i) the Administrative Agent, if                                                                                                             it  so  agrees,  or  (ii)  any  other  Person  appointed  by  the  Borrower  in  consultation  with  the        (b)    Subject  to  the  requirements  of  this  Section  2.23,  an  Extended  Class  may  be                               Refinancing Arranger established pursuant to a supplement (which shall set forth the effective date of such extension) to                                     Additional  Arranger    Refinancing  Loan  Request this Agreement (which, except to the extent otherwise expressly contemplated by this  Section              request  (A)  a  new  Class  of  term  loans  (any  such  commitment  to  make  sure  new  Loans,  2.23(c), shall require the consent only of the Lenders who elect to make the Extended Term Loans            Refinancing Term Commitments    (B) the establishment of a new Class of revolving credit  or Extended Revolving Credit Commitments established thereby) in such form as approved from                                                   Refinancing  Revolving  Credit  Commitments time to time by the Borrower and the applicable Extension Arranger in the reasonable exercise of                                                           Refinancing Commitments                                         Extension Amendment                                                case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in  Parties, the applicable Extension Arranger and the Extending Lenders, so long as (i) no Event of           whole  or  in  part,  any  Class  of  existing  Loans  or  Commitments  (with  respect  to  a  particular  Default has occurred and is continuing (after giving effect to any amendments and/or waivers that          Refinancing  Commitment  or  Refinancing  Loan,  such  existing  Loans  or  Commitments,  are or become effective on the date that such Extended Term Loans are established) and (ii) the             Refinanced Debt applicable Extension Arranger shall have received legal opinions addressed to such Extension               of the Lenders and the Administrative Agent.  Arranger and the Extending Lenders, board resolutions and other closing certificates reasonably  requested by the applicable Extension Arranger and consistent with those delivered on the Initial                (a)   Refinancing Loans.  Each Class of Refinancing Loans made on any Refinancing  Funding  Date  under  Section  4.02,  other  than  changes  to  such  legal  opinions  resulting  from  a  Facility  Closing  Date  shall  be  designated  a  separate  Class  of  Loans  for  all  purposes  of  this                                                                                                             Agreement; provided that, with the consent of the Administrative Agent, Refinancing Loans may                                                                                                             be designated as part of an existing Class of Loans.  On any Refinancing Facility Closing Date on                                         96                                                                                                         97  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction                            (ii)   to the extent reasonably requested by the Refinancing Arranger, receipt  of the terms and conditions in this Section 2.24, (i) each Refinancing Term Lender of such Class                   by the Refinancing Arranger of (A) customary legal opinions, board resolutions and                                     Refinancing  Term  Loan Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such                            (conformed as appropriate) other than changes to such legal opinions resulting from a  Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such  Class and the Refinancing Term Loans of such Class made pursuant thereto.  On any Refinancing                      satisfactory to the Refinancing Arranger and (B) reaffirmation agreements and/or such  Facility Closing Date on which any Refinancing Revolving Credit Commitments of any Class are                       amendments  to  the  Security  Documents  as  may  be  reasonably  requested  by  the  effected, subject to the satisfaction of the terms and conditions in this Section 2.24, (A) each                   Refinancing Arranger in  order to  ensure that such Refinancing Lenders are provided  Refinancing Revolving Credit Lender of such Class shall make its Commitment available to the                       with the benefit of the applicable Loan Documents.                               Refinancing  Revolving  Loan                        Refinancing Loan                       Refinancing Revolving                              (d)   Required  Terms.   The terms, provisions and documentation of the Refinancing  Credit Commitment of such Class and (B) each Refinancing Revolving Credit Lender of such                   Term  Loans  and  Refinancing  Term  Commitments  or  the  Refinancing  Revolving  Loans  and  Class  shall  become  a  Lender  hereunder  with  respect  to  the  Refinancing  Revolving  Credit         Refinancing Revolving Credit Commitments, as the case may be, of any Class shall be as agreed  Commitment of such Class and the Refinancing Revolving Loans of such Class made pursuant                   between  the  Borrower  and  the  applicable  Refinancing  Lenders  providing  such  Refinancing  thereto.                                                                                                   Commitments, and except as otherwise set forth herein, to the extent not identical to any Class of                                                                                                             Term Loans or Revolving Credit Commitments, as applicable, each existing on the Refinancing        (b)    Refinancing Loan Request.  Each Refinancing Loan Request from the Borrower                    Facility Closing Date, shall be consistent with clauses (A)-(G) below, as applicable, and (i) reflect  pursuant  to  this Section 2.24 shall set  forth  the requested  amount  and  proposed terms of the        market terms and conditions (taken as a whole) at the time of incurrence of such Indebtedness (as  relevant Refinancing Term Loans or Refinancing Revolving Credit Commitments.  Refinancing                  determined  by  the  Borrower  in  good  faith)  or  (ii)  otherwise  reasonably  satisfactory  to  the  Term Loans may be made, and Refinancing Revolving Credit Commitments may be provided, by                   Refinancing Arranger (except for covenants or other provisions (i) conformed (or added) in the  any existing Lender (but no existing Lender will have an obligation to make any Refinancing                Loan Documents pursuant to the related Refinancing Amendment, (x) in the case of any Class of  Commitment,  nor will  the  Borrower have  any  obligation to  approach  any  existing  Lender to          Refinancing Term Loans and Refinancing Term Commitments, for the benefit of the Term Lenders  provide any Refinancing Commitment) or by any Additional Lender (each such existing Lender                 and (y) in the case of any Class of Refinancing Revolving Loans and Refinancing Revolving Credit                                                        Refinancing  Revolving  Credit                       Commitments, for the benefit of the Revolving Credit Lenders or (ii) applicable only to periods  Lender       Refinancing  Term  Lender                                Refinancing                          after the Latest Maturity Date as of the Refinancing Facility Closing Date) which may be added  Lenders   provided that (i) the Administrative Agent shall have consented (not to be unreasonably          without the consent of any other party.   providing such Refinancing Revolving Credit Commitments, to the extent such consent, if any,                     In any event, (i) the Refinancing Term Loans:  would  be  required  under  Section  9.04  for  an  assignment  of  Term  Loans  or  Revolving  Credit  Commitments, as applicable, to such Lender or Additional Lender, (ii) with respect to Refinancing                            (A)   as of the Refinancing Facility Closing Date, shall not have a final  Term Commitments, any Affiliated Lender providing a Refinancing Term Commitment shall be                               scheduled maturity date earlier than the Maturity Date of the Refinanced Debt,  subject to the same restrictions set forth in Section 9.04 as they would otherwise be subject to with  respect  to  any  purchase  by  or  assignment  to  such  Affiliated  Lender  of  Term  Loans  and                           (B)   as  of  the  Refinancing  Facility  Closing  Date,  shall  not  have  a  (iii) Affiliated Lenders may not provide Refinancing Revolving Credit Commitments.                                     Weighted Average Life to Maturity shorter than the remaining Weighted Average                                                                                                                         Life to Maturity of the Refinanced Debt,        (c)    Effectiveness of Refinancing Amendment.  The effectiveness of  any Refinancing  Amendment, and the Refinancing Commitments thereunder, shall be subject to the satisfaction on                               (C)   shall have an interest rate (which may be fixed or variable), margin                    Refinancing Facility Closing Date                         tions,                                     (if  any)  and  interest  rate  floor  (if  any),  and  subject  to  clause  (e)(ii)  above,  together with any other conditions set forth in the Refinancing Amendment:                                             amortization  determined  by  the  Borrower  and  the  applicable  Refinancing  Term                                                                                                                         Lenders,                 (i)   unless otherwise agreed by the Refinancing Arranger, each Refinancing           Commitment shall be in an aggregate principal amount that is not less than $25,000,000                              (D)   shall  have  fees  determined  by  the  Borrower  and  the  applicable           and shall be in an increment of $1,000,000 (provided that such amount may be less than                        Refinancing Arrangers,           $25,000,000, and not in an increment of $1,000,000, if such amount is equal to the entire                                                                                                                               (E)   (1) may participate on a pro rata basis, less than pro rata basis or           outstanding principal amount of Refinanced Debt); and                                                                                                                         greater  than pro  rata  basis  (except  that,  unless  otherwise  permitted  under  this                                                                                                                         Agreement, such Refinancing Term Loans may not participate on a greater than a                                         98                                                                                                         99  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






             pro rata basis as compared to any earlier maturing Class of Term Loans) in any                            Closing Date all Swing Line Loans and Letters of Credit shall be participated on a               mandatory prepayments of Term Loans and (2) may participate on a pro rata basis,                          pro rata basis by all Participating Revolving Credit Lenders in accordance with               less than pro rata basis or greater than pro rata basis in any voluntary prepayment                       their percentage of the Participating Revolving Credit Commitments existing after               of Term Loans,                                                                                            giving  effect  to  such  Refinancing  Amendment, provided,  such  election  may  be                                                                                                                         made  conditional  upon  the  termination  of  one  or  more  other  Participating                     (F)   shall not have a greater principal amount than the principal amount                           Revolving Credit Commitments,               of the Refinanced Debt plus accrued but unpaid interest, fees, premiums (if any)               and  penalties  thereon  and  reasonable  fees,  expenses,  OID  and  upfront  fees                             (E)   may  provide  that  the  permanent  repayment  of  Revolving  Credit               associated with the refinancing, and                                                                      Loans  with  respect  to,  and  termination  or  reduction  of,  Refinancing  Revolving                                                                                                                         Credit  Commitments  after  the  associated  Refinancing  Facility  Closing  Date  be                     (G)   shall rank pari passu in right of payment and security (but without                           made on a pro rata basis, less than pro rata basis or greater than pro rata basis with               regard to the control of remedies) with the other Obligations under this Agreement,                       all other Revolving Credit Commitments,               shall not at any time be guaranteed by any Subsidiary of the Borrower other than               Subsidiaries that are Guarantors, and the obligations in respect thereof shall not be                           (F)   shall  provide  that  assignments  and  participations  of  Refinancing               secured by any property or assets of the Borrower or any Restricted Subsidiary                            Revolving  Credit  Commitments  and  Refinancing  Revolving  Loans  shall  be               other than the Collateral; and                                                                            governed  by  the  same  assignment  and  participation  provisions  applicable  to                                                                                                                         Revolving Credit Commitments and Revolving Credit Loans then existing on the                 (ii)  the  Refinancing  Revolving  Credit  Commitments  and  Refinancing                                Refinancing Facility Closing Date,           Revolving Loans:                                                                                                                               (G)   shall have an interest rate (which may be fixed or variable), margin                     (A)   shall rank pari passu in right of payment and security (but without                           (if  any)  and  interest  rate  floor  (if  any),  determined  by  the  Borrower  and  the               regard to the control of remedies) with the other Obligations under this Agreement,                       applicable Refinancing Revolving Credit Lenders,               shall not at any time be guaranteed by any Subsidiary of the Borrower other than               Subsidiaries that are Guarantors, and the obligations in respect thereof shall not be                           (H)   shall  have  fees  determined  by  the  Borrower  and  the  applicable               secured by any property or assets of the Borrower or any Restricted Subsidiary                            Refinancing Arrangers, and               other than the Collateral,                                                                                                                               (I)   shall not have a greater principal amount of Commitments than the                     (B)   shall  not  have  a  final  scheduled  maturity  date  or  commitment                         principal amount of the Commitments of the Refinanced Debt plus accrued but               reduction  date  earlier  than  the  Maturity  Date  or  commitment  reduction  date,                     unpaid interest, fees, premiums (if any) and penalties thereon and reasonable fees,               respectively, with respect to the Refinanced Debt and shall not have any scheduled                        expenses, OID and upfront fees associated with the refinancing.               amortization or mandatory Commitment reductions prior to the maturity date of the               Refinanced Debt,                                                                                    (e)   Refinancing Amendment.  Commitments in respect of Refinancing Term Loans and                                                                                                             Refinancing Revolving Credit Commitments shall become additional Commitments pursuant to                     (C)   shall  provide  that  the  borrowing  and  repayment  (except  for  (1)                           Refinancing Amendment              payments of interest and fees at different rates on Refinancing Revolving Credit              Loan  Documents,  executed  by  the  Borrower,  each  Refinancing  Lender  providing  such               Commitments  (and  related  outstandings),  (2)  repayments  required  upon  the              Commitments, and the Refinancing Arranger.  The Refinancing Amendment may, without the               Maturity  Date  of  the  Refinancing  Revolving  Credit  Commitments  and                     consent of other Loan Party, Agent or Lender, (i) effect such amendments to this Agreement and               (3) repayment made in connection with a permanent repayment and termination of                the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the               commitments (subject to clause (E) below)) of Loans with respect to Refinancing               Refinancing Arranger and the Borrower, to effect the provisions of this Section 2.24, including               Revolving Credit Commitments after the associated Refinancing Facility Closing                amendments  as  deemed  necessary  by  the  Refinancing  Arranger  in  consultation  with  the               Date shall be made on a pro rata basis or less than a pro rata basis (but not more            Administrative Agent in its reasonable judgment to address technical issues relating to funding               than a pro rata basis) with all other Revolving Credit Commitments then existing              and payments, including adjusting Interest Periods and other provisions to allow such Refinancing               on the Refinancing Facility Closing Date,                                                     Loans to be part of an Existing Class of Loans and (ii) at the option of the Borrower in consultation                                                                                                             with the applicable Refinancing Arranger, incorporate terms that would be favorable to existing                     (D)   may be elected to be included as additional Participating Revolving               Lenders of the applicable Class or Classes for the benefit of such existing Lenders of the applicable               Credit Commitments under the Refinancing Amendment, subject to the consent of                 Class or Classes, in each case under this clause (ii), so long as the applicable Refinancing Arranger               each  Swing  Line  Lender  and  each  L/C  Issuer,  and  on  the  Refinancing  Facility       reasonably agrees that such modification is favorable to the applicable Lenders.  The Borrower                                         100                                                                                                       101  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






will  use  the  proceeds  of  the  Refinancing  Term  Loans  and  Refinancing  Revolving  Credit           acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed  Commitments to extend, renew, replace, repurchase, retire or refinance the applicable Refinanced           the positive difference, if any, of (i) the Participating Revolving Credit Commitment of that Non- Debt.                                                                                                      Defaulting Lender minus (ii) the sum of (A) the aggregate Outstanding Amount of the Loans of                                                                                                             that  Non-Defaulting  Lender  under  such  Participating  Revolving  Credit  Commitments  plus        (f)    This Section  2.24  shall  supersede  any provisions in  Section  2.17  or  9.08  to  the     (B) such Non-                                                unt of L/C Obligations  contrary.                                                                                                  and Swing Line Obligations at such time.         SECTION 2.25       Defaulting  Lenders.   Notwithstanding  anything  to  the  contrary                     (d)   If  the  Borrower  and  the  Administrative  Agent  agree  in  writing  in  their  sole  contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as           discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the  that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:                   Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified                                                                                                             in  such  notice  and  subject  to  any  conditions  set  forth  therein,  that  Lender  will,  to  the  extent        (a)                                                                                                  applicable, purchase that portion of outstanding Loans of the other Lenders or take such other  or consent with respect to this Agreement shall be restricted as set forth in Section 9.08.                actions as the Administrative Agent may determine to be necessary to cause the Loans to be held                                                                                                             on  a pro  rata basis by the Lenders in accordance with their Pro Rata Share of Commitments,        (b)    Any  payment  of  principal,  interest,  fees  or  other  amounts  received  by  the          whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be  Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory,            made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower  at maturity, pursuant to Article VII or otherwise), shall be applied at such time or times as may be       while  that  Lender  was  a  Defaulting  Lender;  and  provided,  further,  that  except  to  the  extent  determined by the Administrative Agent as follows:  first, to the payment of any amounts owing             otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender  by that Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may               to Lender will constitute a waiver or release of any claim of any party hereunder arising from that  request (so long as no Default or Event of Default has occurred and is continuing), to the funding                                              of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as  required by this Agreement, as determined by the Administrative Agent; third, if so determined by                SECTION 2.26      Letters of Credit.  (a) The Letter of Credit Commitment.  (i) Subject  the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account            to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the  and  released in order to  satisfy obligations of that Defaulting Lender to fund  Loans under this         agreements of the other Revolving Credit Lenders set forth in this Section 2.26, (1) from time to  Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment          time on any Business Day during the period from and including the Closing Date until the Letter  of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a            of Credit Expiration Date, to issue Letters of Credit at sight denominated in Dollars for the account                                                                      fifth, so long as                      of  the  Borrower  (or  so  long  as  the  Borrower  is  the  primary  obligor,  for  the  account  of  any  no Default or Event of Default has occurred and is continuing, to the payment of any amounts               Subsidiary or any Parent) and to amend or renew Letters of Credit previously issued by it, in  owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained            accordance with Section 2.26(b), and (2) to honor drawings under the Letters of Credit and (B) the                                                                                                             Participating Revolving Credit Lenders severally agree to participate in Letters of Credit issued  its obligations under this Agreement; and sixth, to that Defaulting Lender or as otherwise directed        pursuant to this Section 2.26; provided that GS Bank shall not be obligated to issue trade or  by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal      commercial Letters of Credit; and provided further that no L/C Issuer shall be obligated to make  amount of any Loans in respect of which that Defaulting Lender has not fully funded its appropriate        any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to  share and (y) such Loans were made at a time when the conditions set forth in Sections 4.02 or             participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving  4.03, as applicable, were satisfied or waived, such payment shall be applied solely to pay the Loans       Credit  Exposure  of  any  Revolving  Credit  Lender  under  its  Participating  Revolving  Credit  of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any             Commitments would exceed its Participating Revolving Credit Commitments (it being understood  Loans of that Defaulting Lender.  Any payments, prepayments or other amounts paid or payable               that with respect to a Swing Line Lender, its Swing Line Exposure for purposes of this clause (x)  to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall         shall be deemed to be its Pro Rata Share (after giving effect when a Defaulting Lender shall exist  be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents           to any reallocation effected in accordance with Section 2.25(c)) of the total Swing Line Exposure),  hereto.                                                                                                    (y) with respect to any Swing Line Lender that is a Participating Revolving Credit Lender, the                                                                                                             aggregate of its Swing Line Exposure (in its capacity as a Swing Line Lender and a Revolving        (c)    During any period in which there is a Defaulting Lender, for purposes of computing            Credit Lender), plus the aggregate principal amount of its outstanding Revolving Credit Loans (in  the  amount  of  the  obligation  of  each  Non-Defaulting  Lender  to  acquire,  refinance  or  fund      its capacity as a Revolving Credit Lender), plus its L/C Exposure would exceed its Revolving  participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.26 and 2.27, the Pro        Credit Commitment or (z) the Outstanding Amount of the L/C Obligations would exceed the Letter  Rata Share of each Non-                        Credit Loans and L/C Obligations shall                      of Credit Sublimit provided further that no L/C Issuer shall be obligated to make any L/C Credit  be computed  without  giving  effect  to the Participating  Revolving Credit  Commitment of  that          Extension with respect to any Letter of Credit if as of the date of such L/C Credit Extension, after  Defaulting  Lender;  provided  that  the  aggregate  obligation  of  each  Non-Defaulting  Lender  to                                         102                                                                                                       103  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






such L/C Credit Extension, the Outstanding Amount of the L/C Obligations in respect of Letters                               (D)   the issuance of such Letter of Credit would violate any policies of  of                                                                                                                     the L/C Issuer applicable to letters of credit generally;  Sublimit.   Within  the  foregoing  limits,  and  subject  to  the  terms  and  conditions  hereof,  the                                                                      accordingly  the                                         (E)   any  Participating  Revolving  Credit  Lender  is  at  that  time  a  Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit                       Defaulting  Lender,  unless  such  L/C  Issuer  has  entered  into  arrangements  that have expired or that have been drawn upon and reimbursed.                                                                                                                          or potential Fronting Exposure (after giving effect to Section 2.25(c)) with respect                 (i)   An L/C Issuer shall be under no obligation to issue any Letter of Credit                          to the participation in Letters of Credit by such Defaulting Lender, including by           if:                                                                                                           cash  collateralizing  such  Defaulting  L                                                                                                                        Obligations;                     (A)   any order, judgment or decree of any Governmental Authority or               arbitrator  shall  by  its  terms  purport to  enjoin or restrain  such  L/C  Issuer  from                      (F)   such  Letter  of  Credit  is  denominated  in  a currency  other  than  an               issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any                            Available Currency; or               directive  (whether  or  not  having  the  force  of  law)  from  any  Governmental               Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such                            (G)   such Letter of Credit is a trade letter of credit or a bank guarantee.               L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of               Credit in particular or shall impose upon such L/C Issuer with respect to such Letter                       (ii)   An L/C Issuer shall be under no obligation to amend any Letter of Credit               of Credit any restriction, reserve or capital requirement (for which such L/C Issuer                  if (A) such L/C Issuer would have no obligation at such time to issue such Letter of               is not otherwise compensated hereunder) not in effect on the Effective Date, or shall                 Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter               impose upon such L/C Issuer any unreimbursed loss, cost or expense which was                          of Credit does not accept the proposed amendment to such Letter of Credit.               not applicable on the Effective Date (for which such L/C Issuer is not otherwise               compensated hereunder);                                                                             (b)   Procedures  for  Issuance  and  Amendment  of  Letters  of  Credit;  Auto-Extension                                                                                                             Letters of Credit.  (i) Each Letter of Credit shall be issued or amended, as the case may be, upon                     (B)   subject  to  Section  2.26(b)(iii),  the  expiry  date of  such  requested        the request of the Borrower delivered to an L/C Issuer (with a copy to the Administrative Agent)               Letter  of  Credit  would  occur  more  than  twelve  (12)  months  after  the  date  of      in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible               issuance or then-current expiration date unless (1) each Appropriate Lender has               Officer of the Borrower.  Such Letter of Credit Application must be received by the relevant L/C               approved of such expiration date or (2) the Outstanding Amount of L/C Obligations             Issuer and the Administrative Agent not later than 12:30 p.m., New York City time, at least two               in respect of such requested Letter of Credit has been Cash Collateralized or back-           (2) Business Days prior to the proposed issuance date or date of amendment, as the case may be;               stopped by a letter of credit reasonably satisfactory to such L/C Issuer;                     or, in each case, such later date and time as the relevant L/C Issuer may agree in a particular                                                                                                             instance in its sole discretion.  In the case of a request for an initial issuance of a Letter of Credit,                     (C)   (1) the expiry date of such requested Letter of Credit would occur                such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the               after the Letter of Credit Expiration Date, unless (I) each Appropriate Lender has            relevant L/C Issuer:  (A) the proposed issuance date of the requested Letter of Credit (which shall               approved such expiry date or (II) the Outstanding Amount of L/C Obligations in                be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address               respect of such requested Letter of Credit has been Cash Collateralized or back-              of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any               stopped by a letter of credit reasonably satisfactory to such L/C Issuer and the              drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case               Administrative Agent or (2) at any time when there is more than one Maturity Date             of any drawing thereunder; (G) the Available Currency in which the requested Letter of Credit is               in  effect  in  respect  of  Revolving  Credit  Commitments,  there  are  not  sufficient     to be issued will be denominated; and (H) such other matters as the relevant L/C Issuer may               Participating Revolving Credit Commitments maturing more than five Business                   reasonably request.  In the case of a request for an amendment of any outstanding Letter of Credit,               Days after the expiry date of such requested  Letter of Credit to cover the L/C               such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the               Obligations in respect of such Letter of Credit (after taking into account all other          relevant L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment               outstanding  Letters  of  Credit  and  their  respective  expiry  dates),  unless  (I)  each  thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such               Appropriate Lender has approved such expiry date or (II) the Outstanding Amount               other matters as the relevant L/C Issuer may reasonably request.               of L/C Obligations in respect of such requested Letter of Credit has been Cash               Collateralized or back-stopped by a letter of credit reasonably satisfactory to such                        (i)    Promptly after receipt of any Letter of Credit Application, the relevant               L/C Issuer and the Administrative Agent;                                                              L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that                                                                                                                     the Administrative Agent has received a copy of such Letter of Credit Application from                                                                                                                     the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a                                         104                                                                                                       105  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






         copy  thereof.   Upon  receipt  by  the  relevant  L/C  Issuer  of  confirmation  from  the       made on the date of drawing, the Borrower shall pay interest to the relevant L/C Issuer on such           Administrative  Agent  that  the  requested  issuance  or  amendment  is  permitted  in           amount at the rate applicable to ABR Loans under the applicable Participating Revolving Credit           accordance with the terms hereof, then, subject to the terms and conditions hereof, such          Commitments (without duplication of interest payable on L/C Borrowings).  The L/C Issuer shall           L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the          notify  the  Borrower  of  the  amount  of  the  drawing  promptly  following  the  determination  or           Borrower  (and,  if  applicable,  its  applicable  Subsidiary)  or  enter  into  the  applicable  revaluation  thereof.   If  the  Borrower  fails  to  so  reimburse  such  L/C  Issuer  by  such  time,  the           amendment, as the case may be.  Immediately upon the issuance of each Letter of Credit,           Administrative  Agent  shall  promptly  notify  each  Appropriate  Lender  of  the  Honor  Date,  the           each Participating Revolving Credit Lender shall be deemed to, and hereby irrevocably                                                  Unreimbursed Amount          and unconditionally agrees to, purchase from the relevant L/C Issuer a risk participation                                                                        nder this Agreement                                                                                                             thereof.   In  such  event,  the  Borrower  shall  be  deemed  to  have  requested  a  Revolving  Credit           Share times the stated amount of such Letter of Credit.                                           Borrowing of ABR Loans under the Participating Revolving Credit Commitments to be disbursed                                                                                                             on  the Honor  Date  in  an  amount  equal  to  the  Unreimbursed  Amount,  without  regard  to  the                 (ii)  If  the  Borrower  so  requests  in  any  applicable  Letter  of  Credit              minimum  and  multiples  specified  in  Section  2.02  for  the  principal  amount  of  ABR  Loans  or           Application, the relevant  L/C Issuer shall agree  to issue a  Letter of Credit that has          Eurodollar Loans, as the case may be, but subject to the amount of the unutilized portion of the                                             Auto-Extension Letter of Credit   ided                          Participating Revolving Credit Commitments of the Appropriate Lenders and the conditions set           that any such Auto-Extension Letter of Credit must permit the relevant L/C Issuer to              forth in Section 4.03 (other than the delivery of a Borrowing Request).  Any notice given by an           prevent any such extension at least once in each twelve (12) month period (commencing             L/C  Issuer  or  the Administrative  Agent  pursuant  to  this  Section  2.26(c)(i)  may  be  given  by           with  the  date  of  issuance  of  such  Letter  of  Credit)  by  giving  prior  notice  to  the  telephone  if  immediately  confirmed  in  writing;  provided  that  the  lack  of  such  an  immediate                                               Non-extension Notice Date                                     confirmation shall not affect the conclusiveness or binding effect of such notice.           twelve (12) month period to be agreed upon at the time such Letter of Credit is issued.            Unless otherwise directed by the relevant L/C Issuer, the Borrower shall not be required                        (i)    Each Appropriate Lender (including any Lender acting as an L/C Issuer)           to make a specific request to the relevant L/C Issuer for any such extension.  Once an                    shall  upon  any  notice  pursuant  to  Section  2.26(c)(i)  make  funds  available  to  the           Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have                      Administrative  Agent  for  the  account  of  the  relevant  L/C  Issuer  in  Dollars,  at  the           authorized (but may not require) the relevant L/C Issuer to permit the extension of such                  Administr          Letter of Credit at any time to an expiry date that is, unless the Outstanding Amount of                  the Unreimbursed Amount not later than 1:00 p.m., New York City time, on the Business           L/C  Obligations  in  respect  of  such  requested  Letter  of  Credit  has  been  Cash                   Day specified in such notice by the Administrative Agent, whereupon, subject to the           Collateralized or back-stopped by a letter of credit reasonably satisfactory to the relevant              provisions  of  Section  2.26(c)(iii),  each  Appropriate  Lender  that  so  makes  funds           L/C Issuer, not later than the Letter of Credit Expiration Date; provided that the relevant               available shall be deemed to have made an ABR Loan under the Participating Revolving           L/C  Issuer  shall  not  permit  any  such  extension  if  (A)  the  relevant  L/C  Issuer  has           Credit Commitments to the Borrower in such amount.  The Administrative Agent shall           determined that it would not be permitted at such time to issue such Letter of Credit in                  remit the funds so received to the relevant L/C Issuer.           its  extended  form  under  the  terms  hereof  (by  reason  of  the  provisions  of  Section           2.26(a)(ii) or otherwise), or (B) it has received notice on or before the day that is seven                     (ii)   With respect to any Unreimbursed Amount that is not fully refinanced by           (7)  Business  Days  before  the  Non-extension  Notice  Date  from  the  Administrative                  a Revolving Credit Borrowing of ABR Loans because the conditions set forth in Section           Agent, any Participating Revolving Credit Lender or the Borrower that one or more of                      4.03 cannot be satisfied or for any other reason, the Borrower shall be deemed to have           the applicable conditions specified in Section 4.03 is not then satisfied.                                incurred  from  the  relevant  L/C  Issuer  an  L/C  Borrowing  in  the  amount  of  the                                                                                                                     Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and                 (iii) Promptly after issuance of any Letter of Credit or any amendment to a                         payable on demand (together with interest) and shall bear interest at the rate calculated           Letter  of  Credit,  the  relevant  L/C  Issuer  will  also  deliver  to  the  Borrower  and  the         pursuant  to  Section  2.07          Administrative Agent a true and complete copy of such Letter of Credit or amendment.                      Administrative  Agent  for  the  account  of  the relevant  L/C  Issuer pursuant  to  Section                                                                                                                     2.26(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing        (c)    Drawings and Reimbursements; Funding of Participations.  (i) Upon receipt from                        and shall constitute an L/C Advance from such Lender in satisfaction of its participation  the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the                obligation under this Section 2.26.  relevant L/C Issuer shall notify promptly the Borrower and the Administrative Agent thereof.  Not  later than 12:00 noon, New York City time, on the second Business Day following any payment                              (iii)  Until each Appropriate Lender funds its Revolving Credit Loan or L/C                                                                             Honor                                   Advance pursuant to this Section 2.26(c) to reimburse the relevant L/C Issuer for any  Date amount equal to the amount of such drawing in Dollars provided that if such reimbursement is not                   Share of such amount shall be solely for the account of the relevant L/C Issuer.                                          106                                                                                                       107  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






               (iv)                                                                                                demand of the Administrative Agent, plus interest thereon from the date of such demand           Revolving Credit Loans or L/C Advances to reimburse an L/C Issuer for amounts drawn                       to the date such amount is returned by such Lender, at the Bank Rate.           under Letters of Credit, as contemplated by this Section 2.26(c), shall be absolute and           unconditional and shall not be affected by any circumstance, including (A) any setoff,                  (e)   Obligations Absolute.  The obligation of the Borrower to reimburse the relevant           counterclaim, recoupment, defense or other right which such Lender may have against               L/C  Issuer  for  each  drawing  under  each  Letter  of  Credit  issued  by  it  and  to  repay  each  L/C           the relevant L/C Issuer, the Borrower or any other Person for any reason whatsoever;              Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance           (B) the occurrence or continuance of a Default or an Event of Default; (C) any adverse            with the terms of this Agreement under all circumstances, including the following:           change in the condition (financial or otherwise) of the Loan Parties; (D) any breach of           this Agreement or any other Loan Document by the Borrower, any other Loan Party or                              (i)    any  lack  of  validity  or  enforceability  of  such  Letter  of  Credit,  this           any other L/C  Issuer;  or  (E)  any other circumstance,  occurrence,  event or  condition,               Agreement, or any other agreement or instrument relating thereto;           whether  or  not  similar  to  any  of  the  foregoing;  provided  that  each  Participating                                                                                                                           (ii)   the existence of any claim, counterclaim, setoff, defense or other right           Section 2.26(c) is subject to the conditions set forth in Section 4.03 (other than delivery               that any Loan Party may have at any time against any beneficiary or any transferee of           by the Borrower of a Borrowing Request).  No such making of an L/C Advance shall                          such  Letter  of  Credit  (or  any  Person  for  whom  any  such  beneficiary  or  any  such           relieve or otherwise impair the obligation of the Borrower to reimburse the relevant L/C                  transferee  may  be  acting),  the  relevant  L/C  Issuer  or  any  other  Person,  whether  in           Issuer  for  the  amount  of any payment  made  by such  L/C Issuer under any Letter of                   connection with this Agreement, the transactions contemplated hereby or by such Letter           Credit, together with interest as provided herein.                                                        of Credit or any agreement or instrument relating thereto, or any unrelated transaction;                  (v)   If any Participating Revolving Credit Lender fails to make available to                             (iii)  any draft, demand, certificate or other document presented under such           the Administrative Agent for the account of the relevant L/C Issuer any amount required                   Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect           to be paid by such Lender pursuant to the foregoing provisions of this Section 2.26(c)                    or any statement therein being untrue or inaccurate in any respect; or any loss or delay           by the time specified in Section 2.26(c)(ii), such L/C Issuer shall be entitled to recover                in the transmission or otherwise of any document required in order to make a drawing           from such Lender (acting through the Administrative Agent), on demand, such amount                        under such Letter of Credit;           with interest thereon for the period from the date such payment is required to the date                                                                                                                           (iv)   any  payment  by  the  relevant  L/C  Issuer  under  such  Letter  of  Credit           on which such payment is immediately available to such L/C Issuer at the Bank Rate.                                                                                                                      against presentation of a draft or certificate that does not strictly comply with the terms           A certificate of the relevant L/C Issuer submitted to any Participating Revolving Credit                                                                                                                     of such Letter of Credit; or any payment made by the relevant L/C Issuer under such           Lender (through the Administrative Agent) with respect to any amounts owing under                                                                                                                     Letter  of  Credit  to  any  Person  purporting  to  be  a  trustee  in  bankruptcy,  debtor-in-          this Section 2.26(c)(vi) shall be conclusive absent manifest error.                                                                                                                     possession,  assignee  for  the  benefit  of  creditors,  liquidator,  receiver  or  other        (d)    Repayment of Participations.  (i) If, at  any  time after an L/C  Issuer has  made a                  representative  of  or  successor  to  any  beneficiary  or any  transferee  of  such  Letter of  payment  under any  Letter  of Credit  and  has  received  from  any  Participating  Revolving Credit              Credit;                                                                     Section 2.26(c),                                                                                                                           (v)    any exchange, release or non-perfection of any Collateral, or any release  the Administrative Agent receives for the account of such L/C Issuer any payment in respect of                                                                                                                     or amendment  or waiver  of  or  consent  to  departure  from the  Guaranty  or  any  other  the  related  Unreimbursed  Amount  or  interest  thereon  (whether  directly  from  the  Borrower  or                                                                                                                     guarantee, for all or any of the Obligations of any Loan Party in respect of such Letter  otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the                                                                                                                     of Credit; or  Administrative  Agent will  distribute  to  such  Lender its Pro Rata  Share thereof (appropriately  adjusted to reflect (x) any reallocation effected in accordance with Section 2.25(c) and (y) in the                      (vi)   any other circumstance or happening whatsoever, whether or not similar                                                                                                                     to any of the foregoing, including any other circumstance that might otherwise constitute  outstanding) in the amount received by the Administrative Agent.                                                   a defense available to, or a discharge of, any Loan Party;                  (i)   If any payment received by the Administrative Agent for the account of                      provided that the foregoing shall not excuse any L/C Issuer from liability to Borrower to           an L/C Issuer pursuant to Section 2.26(c)(i) is required to be returned under any of the                the  extent  of  any  direct  damages  (as  opposed  to  consequential,  punitive,  special  or           circumstances described in Section 9.06 (including pursuant to any settlement entered                   exemplary damages, claims in respect of which are waived by the Borrower to the extent           into by such L/C Issuer in its discretion), each Appropriate Lender shall pay to the                    permitted by applicable Law) suffered by the Borrower that are c          Administrative Agent for the account of such L/C Issuer its Pro Rata Share thereof on                   gross  negligence  or  willful  misconduct  as  determined  in  a  final  and  non-appealable                                          108                                                                                                       109  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






      judgment by a court of competent jurisdiction when determining whether drafts and other              (i) or (ii), (A) the Business Day that the Borrower receives notice thereof, if such notice is received        documents presented under a Letter of Credit comply with the terms thereof.                          on such day prior to 12:00 noon, New York City time, or (B) if clause (A) above does not apply,                                                                                                             the Business Day immediately following the day that the Borrower receives such notice and (y) in        (f)    Role  of  L/C  Issuers.   Each  Lender  and  the  Borrower  agree  that,  in  paying  any     the case of the immediately preceding clause (iii), the Business Day on which an Event of Default  drawing under a Letter of Credit, the relevant L/C Issuer shall not have any responsibility to obtain      set forth under Section 7.01(g) occurs or, if such day is not a Business Day, the Business Day  any document (other than any sight draft, certificates and documents expressly required by the             immediately  succeeding  such  day.   At  any  time  that  there  shall  exist  a  Defaulting  Lender,  Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or        immediately upon the request of the Administrative Agent, the L/C Issuer or the Swing Line  the authority of the Person executing or delivering any such document.  None of the L/C Issuers,           Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral in an  amount  nor any of the respective correspondents, participants or assignees of any L/C Issuer shall be liable      sufficient  to  cover  all  Fronting  Exposure  (after  giving  effect  to  Section  2.25  and  any  Cash  to any Lender for (i) any action taken or omitted in connection herewith at the request or with the        Collate                                                  Cash Collateralize approval of the Lenders or the Lenders holding a majority of the Participating Revolving Credit            to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the relevant  Commitments, as applicable; (ii) any action taken or omitted in the absence of gross negligence or         L/C Issuer and the Appropriate Lenders, as collateral for the relevant L/C Obligations, cash or  willful misconduct as determined in a final and non-appealable judgment by a court of competent                                   Cash Collateral jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or     substance reasonably satisfactory to the Administrative Agent and the relevant L/C Issuer (which  instrument related to any Letter of Credit or Letter of Credit Application.  The Borrower hereby           documents are hereby consented to by the Appropriate Lenders).  Derivatives of such term have  assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of     corresponding meanings.  The Borrower hereby grants to the Administrative Agent, for the benefit  any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the        of the L/C Issuers and the Participating Revolving Credit Lenders, a security interest in all such                                                                         r transferee                        cash, deposit accounts and all balances therein and all proceeds of the foregoing.  Cash Collateral  at  law  or  under  any  other  agreement.   None  of  the  L/C  Issuers,  nor  any  of  the  respective   shall be maintained in blocked accounts at the Administrative Agent and may be invested in readily  correspondents, participants or assignees of any L/C Issuer, shall be liable or responsible for any        available Cash Equivalents.  If at any time the Administrative Agent determines that any funds  of the matters described in clauses (i) through (vi) of Section 2.26(e); provided that anything in         held as Cash Collateral are expressly subject to any right or claim of any Person other than the  such clauses to the contrary notwithstanding, the Borrower may have a claim against an L/C Issuer,         Administrative Agent (on behalf of the Secured Parties) or that the total amount of such funds is  and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any           less than the aggregate Outstanding Amount of all relevant L/C Obligations, the Borrower will,  direct, as opposed to consequential, punitive or exemplary, damages suffered by the Borrower               forthwith  upon  demand  by  the  Administrative  Agent,  pay  to  the  Administrative  Agent,  as                                                                                                             additional funds to be deposited and held in the deposit accounts at the Administrative Agent as                                                                   under  any  Letter of                     aforesaid, an amount equal to the excess of (1) such aggregate Outstanding Amount over (2) the  Credit after the presentation to it by the beneficiary of document(s) strictly complying with the          total amount of funds, if any, then held as Cash Collateral that the Administrative Agent reasonably  terms and conditions of a Letter of Credit, in each case as determined in a final and non-appealable       determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of  judgment  by  a  court  of  competent  jurisdiction.   In  furtherance  and  not  in  limitation  of  the  Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent  foregoing, each L/C Issuer may accept documents that appear on their face to be in order, without          permitted under applicable Law, to reimburse the relevant L/C Issuer.  To the extent the amount  responsibility for further investigation, regardless of any notice or information to the contrary, and     of any Cash Collateral exceeds the then Outstanding Amount of such L/C Obligations and so long  no L/C Issuer shall be responsible for the validity or sufficiency of any instrument transferring or       as no Event of Default has occurred and is continuing, the excess shall be refunded to the Borrower.   assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder      To the extent any Event of Default giving rise to the requirement to Cash Collateralize any Letter  or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any             of Credit pursuant to this Section 2.26(g) is cured or otherwise waived, then so long as no other  reason.                                                                                                    Event of Default has occurred and is continuing, all Cash Collateral pledged to Cash Collateralize                                                                                                             such Letter of Credit shall be refunded to the Borrower.  If at any time the Administrative Agent        (g)    Cash Collateral.  (i) If, as of any Letter of Credit Expiration Date, any applicable          determines that  Cash  Collateral is subject to any right  or claim of any  Person other than the  Letter of Credit for any reason remains outstanding and partially or wholly undrawn, (ii) if any           Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less  Event of Default occurs and is continuing and the Administrative Agent or the Lenders holding a            than the applicable Fronting Exposure and other obligations secured thereby, the Borrower or the  majority of the Participating Revolving Credit Commitments, as applicable, require the Borrower            relevant  Defaulting  Lender will, promptly upon demand by  the  Administrative  Agent, pay  or  to Cash Collateralize the L/C Obligations pursuant to Section 7.01 or (iii) if an Event of Default         provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate  set forth under Section 7.01(g) occurs and is continuing, the Borrower shall Cash Collateralize the        such deficiency.  In addition, the Administrative Agent may request at any time and from time to  then Outstanding Amount of all of its (or, in the case of clause (i), the applicable) L/C Obligations      time after the initial deposit of Cash Collateral that additional Cash Collateral be provided by the  (in  an  amount  equal  to  such  Outstanding  Amount  determined  as  of  the  date  of  such  Event  of  Borrower in order to protect against the results of exchange rate fluctuations with respect to Letters  Default or the applicable Letter of Credit Expiration Date, as the case may be), and shall do so not       of Credit denominated in currencies other than Dollars.  later than 2:00 p.m., New York City time, on (x) in the case of the immediately preceding clauses                                         110                                                                                                       111  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






      (h)    Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent for the                    written agreement among the Borrower, the Administrative Agent and such Revolving  account of each Participating Revolving Credit Lender in accordance with its Pro Rata Share a                      Credit  Lender.   The  Administrative  Agent  shall  notify  the  Participating  Revolving  Letter of Credit  fee  for  each Letter of Credit issued pursuant to this Agreement equal to the                   Credit Lenders of any such additional L/C Issuer.  Applicable Margin then in effect for Eurodollar Loans that are Revolving Credit Loans times the  daily maximum amount then available to be drawn under such Letter of Credit (whether or not                              (ii)   Any L/C Issuer may resign in its capacity as an L/C Issuer hereunder  such maximum amount is then in effect under such Letter of Credit if such maximum amount                           solely with the consent of the Borrower (not to be unreasonably withheld or delayed),  increases periodically pursuant to the terms of such Letter of Credit); provided, however,  any                    and  any  L/C  Issuer  may  be  replaced  at  any  time  by  written  agreement  among  the  Letter of Credit fees otherwise payable for the account of a Defaulting Lender with respect to any                 Borrower, the Administrative Agent, the replaced L/C Issuer and the successor  L/C  Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory                  Issuer.   The  Administrative  Agent  shall  notify  the  Participating  Revolving  Credit  to the L/C Issuer pursuant to this Section 2.26 shall be payable, to the maximum extent permitted                  Lenders of any such resignation or replacement.  At the time any such resignation or  by  applicable  Law,  to  the  other  Lenders  in  accordance  with  the  upward  adjustments  in  their           replacement shall become effective, the Borrower shall pay all unpaid fees accrued for  respective Pro Rata Share allocable to such Letter of Credit pursuant to Section 2.25, with the                    the account of the resigning or replaced L/C Issuer, as applicable, pursuant to Section  balance of such fee, if any, payable to the L/C Issuer for its own account.  Such Letter of Credit                 2.26(h).  In the case of the replacement of an L/C Issuer, from and after the effective  fees shall be computed on a quarterly basis in arrears.  Such Letter of Credit fees shall be due and               date of any such replacement, (A) the successor L/C Issuer shall have all the rights and  payable in Dollars on the 15th day of each of April, July, October and January, commencing with                    obligations of an L/C Issuer under this Agreement with respect to Letters of Credit to be  the first such date to occur after the issuance of such Letter of Credit, on the applicable Letter of              issued thereafter and (B)                                             to  Credit Expiration Date and thereafter on demand provided that if any such day is not a Business                    refer to such successor L/C Issuer or to such replaced L/C Issuer, or to such successor  Day, payment shall be due on the next succeeding Business Day.  If there is any change in the                      L/C  Issuer  and  such  replaced  L/C  Issuer,  as  the  context  shall  require.   After  the  applicable Rate during any quarter, the daily maximum amount of each Letter of Credit shall be                     resignation or replacement of  an  L/C  Issuer hereunder, the  resigned  or replaced  L/C  computed and multiplied by the applicable Rate separately for each period during such quarter that                 Issuer, as applicable, shall remain a party hereto and shall continue to have all the rights  such applicable Rate was in effect.                                                                                and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit                                                                                                                     issued by it prior to such resignation or replacement, but shall not be required to issue        (i)    Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers.                           additional Letters of Credit.  The Borrower shall pay directly to each L/C Issuer for its own account a fronting fee with respect  to each Letter of Credit issued by it equal to 0.125% per annum of the maximum amount available                  (l)   Provisions Related to Extended Revolving Credit Commitments.  If the Maturity  to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect              Date in respect of any Participating Revolving Credit Commitments occurs prior to the expiry date  under such Letter of Credit if such maximum amount increases periodically pursuant to the terms            of any Letter of Credit, then (i) if one or more other Participating Revolving Credit Commitments  of such Letter of Credit).  Such fronting fees shall be computed on a quarterly basis in arrears.          are then in effect (or will automatically be in effect upon such maturity), such Letters of Credit  Such fronting fees shall be due and payable in Dollars on the 15th  day  of  each of  April, July,         shall automatically be deemed to have been issued (including for purposes of the obligations of  October and January, commencing with the first such date to occur after the issuance of such Letter        the  Participating  Revolving  Credit  Lenders  to  purchase  participations  therein  and  to  make  of Credit, on the Letter of Credit Expiration Date and thereafter on demand, provided that if any          Revolving Credit  Loans  and  payments  in  respect thereof  pursuant to  Sections  2.26(c) and  (d))  such day is not a Business Day, payment shall be due on the next succeeding Business Day.  In              under (and ratably participated in by Participating Revolving Credit Lenders pursuant to) the non- addition, the Borrower shall pay directly to each L/C Issuer for its own account with respect to           terminating Participating Revolving Credit Commitments up to an aggregate amount not to exceed  each Letter of Credit the customary issuance, presentation, amendment and other processing fees,           the aggregate principal amount of the unutilized Participating Revolving Credit Commitments  and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time        continuing at such time (it being understood that no partial face amount of any Letter of Credit  to time in effect.  Such customary fees and standard costs and charges are due and payable within          may be so reallocated) and (ii) to the extent not reallocated pursuant to immediately preceding  ten (10) Business Days of demand and are non-refundable.                                                   clause  (i)  and  unless  provisions  reasonably  satisfactory  to  the  applicable  L/C  Issuer  for  the                                                                                                             treatment of such Letter of Credit as a letter of credit under a successor credit facility have been        (j)    Conflict with Letter of Credit Application.  Notwithstanding anything else to the             agreed upon, the Borrower shall, on or prior to the applicable Maturity Date, cause all such Letters  contrary in this Agreement or any Letter of Credit Application, in the event of any conflict between  the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.        or to the extent that the Borrower is unable to so replace and return any Letter(s) of Credit, such         (k)    Addition or Replacement of an L/C Issuer.                                                     the applicable L/C Issuer or the Borrower shall Cash Collateralize any such Letter of Credit in                                                                                                             accordance  with  Section  2.26(g).   Commencing  with  the  Maturity  Date  of  the  any  Class  of                 (i)   A Revolving Credit Lender reasonably acceptable to the Borrower and                   Revolving Credit Commitments, the Letter of Credit Sublimit shall be in an amount agreed solely           the Administrative Agent may become an additional L/C Issuer hereunder pursuant to a              with the L/C Issuers.                                         112                                                                                                       113  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






      (m)    Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit           borrowing date, which shall be a Business Day.  Promptly after receipt by any Swing Line Lender  issued or  outstanding hereunder is  in support  of any obligations  of, or  is  for the account  of,  a   of any Swing Line Loan Notice, such Swing Line Lender will confirm with the Administrative  Subsidiary or Parent Guarantor, the Borrower shall be obligated to reimburse the applicable L/C            Agent (by telephone or in writing) that the Administrative Agent has also received such Swing  Issuer hereunder for any and all drawings under such Letter of Credit.  The Borrower hereby                                                                                 of the Swing Line  acknowledges that the issuance  of Letters of Credit for the account of Subsidiaries or Parent             Loan to be made (and if the Administrative Agent has not received such Swing Line Loan Notice,  Guara                                                                                                      such Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the  substantial benefits from the businesses of such Subsidiaries.                                             contents thereof).  Unless a Swing Line Lender has received notice (by telephone (if such Swing                                                                                                             Line  Lender  agrees  to  accept  telephonic  notice)  or  in  writing)  from  the  Administrative  Agent        SECTION 2.27       Swing Line Loans.  (a) The Swing Line.  Subject to the terms and                  (including at the request of any Revolving Credit Lender) prior to 2:00 p.m., New York City time,  conditions set forth herein, each Swing Line Lender severally agrees to make loans in Dollars to           on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lenders not to                               Swing Line Loan                                                               make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first  during the period beginning on the Business Day after the Closing Date until the date which is one         sentence of Section 2.27(a), or (B) that one or more of the applicable conditions specified in  Business Day prior to the Maturity Date of the Participating Revolving Credit Commitments                  Section 4.03 is not then satisfied, then, subject to the terms and conditions hereof, such Swing Line  (taking into account the Maturity Date of any Participating Revolving Credit Commitment that               Lender will, not later than 4:00 p.m., New York City time, on the borrowing date specified in such  will automatically come into effect on such Maturity Date) in an aggregate amount not to exceed            Swing Line Loan Notice, make its ratable portion of the amount of the Swing Line Loan available  at any time outstanding the amount of the Swing Line Sublimit; provided that, after giving effect          to  the  Borrower  to any Swing Line Loan (i) with respect to any Revolving Credit Lender, the Revolving Credit               Revolving  Credit  Commitment  (in  its  capacity  as  a  Revolving  Credit  Lender)  to  the  total  Exposure under its Participating Revolving Credit Commitments shall not exceed its aggregate               Revolving Credit Commitments of all of the Swing Line Lenders (in their respective capacities as  Participating Revolving Credit Commitments (it being understood that with respect to a Swing               Revolving Credit Lenders)).  Notwithstanding anything to the contrary contained in this Section  Line Lender, its Swing Line Exposure for purposes of this clause (i) shall be deemed to be its Pro         2.27 or elsewhere in this Agreement, no Swing Line Lender shall be obligated to make any Swing  Rata Share (after giving effect when a Defaulting Lender shall exist to any reallocation effected in       Line Loan at a time when a Participating Revolving Credit Lender is a Defaulting Lender unless  accordance  with  Section  2.25(c))  of the  total  Swing  Line  Exposure),  (ii)  with  respect  to any   such  Swing  Line  Lender  has  entered  into  arrangements  reasonably  satisfactory  to  it  and  the  Revolving Credit Lender, the aggregate Outstanding Amount of the Revolving Credit Loans of                 Borrower to eliminate such                                                Section                                                                                                             2.25 effect when a Defaulting Lender shall exist to any reallocation effected in accordance with Section        Line Loans, including by Cash Collateralizing, or obtaining a backstop letter of credit from an  2.25(c)                                                                                                    issuer reasonably satisfactory to such Swing Line Lender to supp Revolving Credit Commitment then in effect and (iii) with respect to any Swing Line Lender, the  aggregate of its Swing Line Exposure (in its capacity as a Swing Line Lender and a Revolving               provided for under this Agreement.  The Borrower shall repay to the Swing Line Lenders each  Credit Lender), plus the aggregate principal amount of its outstanding Revolving Credit Loans (in                                      giving effect to Section 2.25) of each Swing Line Loan promptly  its capacity as a Revolving Credit Lender), plus its L/C Exposure shall not exceed its Revolving           following demand by any Swing Line Lender.  Credit Commitment; provided, further, that the Borrower shall not use the proceeds of any Swing  Line Loan to refinance any outstanding Swing Line Loan.  Within the foregoing limits, and subject                (b)   Refinancing of Swing Line Loans.  to the other terms and conditions hereof, the Borrower may borrow, prepay and reborrow Swing  Line Loans.  Each Swing Line Loan shall be an ABR Loan.  Immediately upon the making of a                                (i)    Each Swing Line Lender at any time in its sole and absolute discretion  Swing Line Loan by any Swing Line Lender, each Participating Revolving Credit Lender shall be                      may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing  deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such Swing Line                     Line  Lenders  to  so  request  on  its  behalf),  that  each  Participating  Revolving  Credit  Lender a risk participation in such Swing Line Loan in an amount equal to the product of such                      Lender make an ABR Loan in an amount eq                                                                                                                    amount of Swing Line Loans of the Borrower then outstanding.  Such request shall be                                                                                                                     made in writing (which written request shall be deemed to be a Borrowing Request for        (a)    Borrowing  Procedures.   Each  Swing  Line  Borrowing  shall  be  made  upon  the                     purposes  hereof)  and in  accordance  with  the  requirements of Section  2.02,  without                                                Swing Line Loan Notice  to the Swing                                 regard to the minimum and multiples specified therein for the principal amount of ABR  Line Lenders and the Administrative Agent.  Each such notice must be appropriately completed                       Loans, but subject to the unutilized portion of the aggregate Participating Revolving  and signed by a Responsible Officer of the Borrower and received by the Swing Line Lenders and                     Credit Commitments and the conditions set forth in Section 4.03.  Such Swing Line  the Administrative Agent not later than 1:00 p.m., New York City time, on the requested borrowing                  Lender shall furnish the Borrower with a copy of the applicable Borrowing Request  date and shall specify (i) the amount to be borrowed, which shall be a minimum of $500,000 (and                    promptly after delivering such notice to the Administrative Agent.  Each Participating  any amount in excess of $500,000 shall be an integral multiple of $100,000) and (ii) the requested                 Revolving Credit Lender shall make an amount equal to its Pro Rata Share of the amount                                         114                                                                                                       115  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






         specified in such Borrowing Request available to the Administrative Agent in Same Day                     conditions set forth in Section 4.03.  No such funding of risk participations shall relieve                                                                                                                     or otherwise impair the obligation of the Borrower to repay the applicable Swing Line           not later than 1:00 p.m., New York City time, on the day specified in such Borrowing                      Loans, together with interest as provided herein.           Request, whereupon, subject to Section 2.27(c)(ii), each Participating Revolving Credit           Lender that so makes funds available shall be deemed to have made an ABR Loan, as                       (c)   Repayment of Participations.           applicable, to the Borrower in such amount.  The Administrative Agent shall remit the           funds so received ratably to the Swing Line Lenders in accordance with their outstanding                        (i)    At  any  time  after  any  Participating  Revolving  Credit  Lender  has           Swing Line Loans.  Upon the remission by the Administrative Agent to the Swing Line                       purchased and funded a risk participation in a Swing Line Loan, if any Swing Line           Lenders of the full amount specified in such Borrowing Request, the Borrower shall be                     Lender receives any payment on account of such Swing Line Loan, such Swing Line           deemed to have repaid the applicable Swing Line Loan.                                                     Lender will distribute to such Lender its Pro Rata Share of such payment (appropriately                                                                                                                     adjusted to reflect (x) any reallocation effected in accordance with Section 2.25(c) and                 (ii)  If for any reason any Swing Line Loan cannot be refinanced by such a                          (y) in the case of interest payments, to reflect the period of time during which such           Revolving Credit Borrowing in accordance with Section 2.27(c)(i), the request for ABR                                                                                 eived by such           Loans submitted by a Swing Line Lender as set forth herein shall be deemed to be a                        Swing Line Lender.           request by such Swing Line Lender that each of the Participating Revolving Credit           Lenders  fund  its  risk  participation  in  the  relevant  Swing  Line  Loan  and  each                        (ii)   If any payment received by any Swing Line Lender in respect of principal                                                                                                                     or interest on any Swing Line Loan is required to be returned by such Swing Line Lender           account  of  the  Swing  Line  Lenders  pursuant  to  Section  2.27(c)(i)  shall  be  deemed              under any of the circumstances described in Section 9.06 (including pursuant to any           payment in respect of such participation.                                                                 settlement entered into by such Swing Line Lender in its discretion), each Participating                                                                                                                     Revolving Credit Lender shall pay to such Swing Line Lender its Pro Rata Share thereof                 (iii) If any Participating Revolving Credit Lender fails to make available to                       on  demand  of  the  Administrative  Agent,  plus  interest  thereon  from  the  date  of  such           the  Administrative  Agent  for  the  account  of  the  Swing  Line  Lenders  any  amount                 demand to the date such amount is returned, at a rate per annum equal to the Bank Rate.            required to be paid by such Lender pursuant to the foregoing provisions of this Section                   The Administrative Agent will make such demand upon the request of any Swing Line           2.27(c)  by  the time  specified  in  Section  2.27(c)(i),  the Swing  Line  Lenders shall be             Lender.           entitled  to recover from  such  Lender  (acting  through the  Administrative Agent),  on           demand, such amount with interest thereon for the period from the date such payment is                  (d)   Interest for Account of Swing Line Lenders.  Each Swing Line Lender shall be           required to the date on which such payment is immediately available to the Swing Line             responsible for invoicing the Borrower for interest on the Swing Line Loans made by it.  Until           Lenders at the Bank Rate.  If such Participating Revolving Credit Lender pays such                each Participating Revolving Credit Lender funds its ABR Loan or risk participation pursuant to           amount,  the  amount  so  paid  shall  constitute  such  Lende                                    this Section 2.27           included in the relevant Borrowing or funded participation in the relevant Swing Line             respect of such Pro Rata Share shall be solely for the ratable account of the Swing Line Lenders.           Loan, as the case may be.  A certificate of any Swing Line Lender submitted to any           Lender (through the Administrative Agent) with respect to any amounts owing under                       (e)   Payments Directly to Swing Line Lenders.  The Borrower shall make all payments           this clause (iii) shall be conclusive absent manifest error.                                      of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lenders.                  (iv)                                                                                              (f)   Provisions Related to Extended Revolving Credit Commitments.  If the Maturity           Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans            Date shall have occurred in respect of  any Participating Revolving Credit Commitments (the           pursuant to this Section 2.27(c) shall be absolute and unconditional and shall not be              Expiring  Credit  Commitment          affected  by  any  circumstance,  including  (A)  any  setoff,  counterclaim,  recoupment,        Commitments are in effect (or will automatically be in effect upon such maturity) with a longer           defense or other right which such Lender may have against any Swing Line Lender, the                                 Non-Expiring Credit Commitment                   Non-Expiring           Borrower  or  any  other  Person  for  any  reason  whatsoever,  (B)  the  occurrence  or         Credit Commitments                                             t occurring Maturity           continuance of a Default or the failure to satisfy any condition in Article IV, (C) any           Date shall be deemed reallocated to the Non-Expiring Credit Commitments on a pro rata basis;           adverse change in the condition (financial or otherwise) of the Loan Parties, (D) any             provided that (x) to the extent that the amount of such reallocation would cause the aggregate credit           breach of this Agreement, or (E) any other occurrence, event or condition, whether or             exposure to exceed the aggregate amount of such Non-Expiring Credit Commitments, immediately           not similar to any of the foregoing; provided that each Participating Revolving Credit            prior to such reallocation (after giving effect to any repayments of Revolving Credit Loans and                                                                     Section 2.27(c)                         any reallocation of Letter of Credit participations as contemplated in Section 2.26(m)) the amount           (but not to purchase and fund risk participations in Swing Line Loans) is subject to the          of Swing Line Loans to be reallocated equal to such excess shall be repaid or cash collateralized                                                                                                             in  a  manner  reasonably  satisfactory  to  the  Swing  Line  Lender  and  (y) notwithstanding  the                                         116                                                                                                       117  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






foregoing, if a Default or Event of Default has occurred and is continuing, the Borrower shall still       to be incurred under Section 4.06 of Annex I and guarantees in favor of the Administrative Agent  be obligated to pay Swing Line Loans allocated to the Participating Revolving Credit Lenders               or otherwise permitted to be incurred under Sections 4.04 or 4.05 of Annex I); (d) violate any  holding  the  Expiring  Credit  Commitments  at  the  Maturity  Date  of  the  Expiring  Credit            applicable Law where such violation has had or would reasonably be expected to have a Material  Commitment or if the Loans have been accelerated prior to the Maturity Date of the Expiring                Adverse Effect; (e)                                                         to be  Credit Commitment.                                                                                         made under any Material Indebtedness to which such Person is a party or affecting such Person or                                                                                                             the properties of such Person or any of its Subsidiaries; or (f) result in the application of any of the                                     ARTICLE III                                                             consolidation,  merger,  conveyance,  transfer  or  lease  of  assets  (however  so  denominated)                                                                                                             provisions of any Material Indebtedness to which such Person is a party or affecting such Person                       REPRESENTATIONS AND WARRANTIES                                                        or the properties of such Person or any of its Subsidiaries, where in case of clauses (e) and (f), any                                                                                                             such requirement or the application of any such provision has had or would reasonably be expected        To induce the Secured Parties to enter into this Agreement and to make Credit Extensions             to have a Material Adverse Effect.  hereunder, each Loan Party represents and warrants to  the Administrative Agent and the other  Secured Parties on the date of each Credit Extension hereunder (solely to the extent required to be              SECTION 3.03      Governmental  Authorization;  Other  Consents.   No  approval,  true and correct for such Credit Extension pursuant to Article IV or Sections 2.22, 2.23 or 2.24, as       consent (including, the consent of equity holders or creditors of any Loan Party or a Restricted  applicable); provided that, on the Initial Funding Date, the only representations and warranties           Subsidiary), exemption, authorization, license or other action by, or notice to, or filing with, any  made under this Article III shall be the Major Representations, that:                                      Governmental Authority or regulatory body or any other Person is necessary or required for the                                                                                                             grant of the security interest by such Loan Party or such Restricted Subsidiary of the Collateral        SECTION 3.01       Existence, Qualification and Power.  (a) Each Loan Party and each                 pledged by it pursuant to the Security Documents or for the execution, delivery or performance  Restricted Subsidiary (i) is a corporation, limited liability company, trust, partnership or limited       by, or enforcement against, any Loan Party or any Restricted Subsidiary of this Agreement or any  partnership,  duly incorporated, organized  or formed, validly existing and,  where  applicable, in        other Loan Document, except for (a) filings or registrations necessary to perfect the Liens created  good standing under the Laws of the jurisdiction of its incorporation, organization, or formation;         under the Security Documents (including the first priority (subject to any Intercreditor Agreement  (ii) has all requisite power and authority to (A) own or lease its assets and carry on its business and    (on and after the execution thereof)) nature thereof), (b) such approvals,  consents, exemptions,  (B) execute, deliver and perform its obligations under the Loan Documents to which it is a party;          authorizations, licenses, actions, notices or filings which have been obtained or made prior to the  (iii)  has all requisite  governmental  licenses,  permits,  authorizations,  consents  and  approvals to  date of such pledge, execution, delivery or performance and are in full force and effect and (c)  carry on its business and (iv) is duly qualified and is licensed and, where applicable, in good            such approval, consent, exemption, authorization, license or other action by the failure of which  standing under the Laws of each jurisdiction where its ownership, lease or operation of properties         to obtain or make has not had or would not reasonably be expected to have a Material Adverse  or the conduct of its business requires such qualification or license; except in each case referred to     Effect.  in clauses (i) (other than with respect to the Borrower), (ii), (iii) and (iv), to the extent that failure  to do so would not reasonably be expected to have a Material Adverse Effect.                                     SECTION 3.04      Binding Effect.   This  Agreement  has  been,  and  each  other  Loan                                                                                                             Document, when delivered, will have been, duly executed and delivered by each Loan Party that        (a)    As of the Effective Date, Schedule 3.01                                                       is party thereto.  This Agreement constitutes, and each other Loan Document when so delivered  name as it appears in official filings, state of incorporation or organization, organization type,         will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each  organization number, if any, issued by its state of incorporation or organization, and its federal         Loan Party that is party thereto in accordance with its terms, subject to applicable bankruptcy,  employer identification number, if any.                                                                                                             subject to general principles of equity, regardless of whether considered in a proceeding in equity        SECTION 3.02       Authorization;  No  Contravention.   The  execution,  delivery  and               or at law.  performance by each Loan Party of each Loan Document to which such Person is a party, have  been duly authorized by all necessary corporate or other organizational action, and do not and will              SECTION 3.05      Financial  Statements;  No  Material  Adverse  Effect.   (a)  The  not (a)                                               Documents; (b) conflict with or                      Original Financial Statements delivered to the Lead Arrangers as of the Effective Date (i) were  result in any breach, termination, or contravention of, or constitute a default under or require any       prepared  in  accordance  with  GAAP,  as  applicable,  consistently  applied  throughout  the  period  payment to be made under (i) any Material Contract or any Material Indebtedness to which such              covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial  Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries     condition of the entities therein (prior to giving effect to the Transactions) as of the date thereof  or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award          and  their  results  of  operations  for  the  period  covered  thereby  in  accordance  with  GAAP,  as  to which such Person or its property is subject, in each case under this clause (b), which has had         applicable,  consistently  applied  throughout  the  period  covered  thereby,  except  as  otherwise  or would reasonably be expected to have a Material Adverse Effect; (c) result in or require the            expressly  noted  therein,  subject  to,  with  respect  to  financial  statements  that  are  not  Audited  creation of any Lien upon any asset of any Loan Party or any guarantee by any Loan Party (other            Financial  Statements,  the  absence  of  footnotes  and  to  normal  year-end  audit  adjustments;  than Liens in favor of the Collateral Agent under the Security Documents or otherwise permitted                                         118                                                                                                       119  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






provided ̧ however, that this representation is made only to the knowledge of the Borrower with                   SECTION 3.09      Environmental  Compliance.   (a)  No  Loan  Party  or  Restricted  respect to financial statements of entities that were not Subsidiaries of the Borrower as of the date      Subsidiary (i) has failed to comply in all material respects with applicable Environmental Law or  of such financial statements.                                                                              to obtain, maintain or comply with any Environmental Permit,  (ii) has become subject to any                                                                                                             Environmental  Liability,  (iii)  has  received  notice  of  any  claim  with  respect  to  any  material        (a)    Since December 31, 2018, there has not occurred any Material Adverse Effect or                Environmental Liability or (iv) has a Responsible Officer with knowledge of any basis for any  any event, condition, change or effect that would reasonably be expected to have, individually or          material  Environmental  Liability,  except,  in  each  case,  as  would  not,  individually  or  in  the  in the aggregate, a Material Adverse Effect.                                                               aggregate, reasonably be expected to have a Material Adverse Effect.         (b)    As of the Initial Funding Date, to the best knowledge of the Borrower, no Internal                  (a)   (i) None of the properties currently or formerly owned or operated by any Loan  Control Event exists or has occurred since the date of the Audited Financial Statements that has           Party or Restricted Subsidiary is or was listed or, to the knowledge of any Responsible Officer was  resulted in or would reasonably be expected to result in a misstatement in any material respect, in        proposed for listing on the NPL or on the CERCLIS or any analogous state or local list at any time  any  financial  information  contained  in  the  Audited  Financial  Statements  delivered  or  to  be     while such  property  was  owned  by such  Loan  Party  or,  to  the  knowledge  of  any  Responsible  delivered to the Administrative Agent or the Lenders, of the assets, liabilities, financial condition      Officer, at any time prior to or after such property was owned by such Loan Party, and, to the  or results of operations of the Group Members on a Consolidated basis.                                     knowledge of any Responsible Officer, no property currently owned or operated by any Loan Party                                                                                                             or Restricted Subsidiary is adjacent to any such property, in each case in connection with any        SECTION 3.06       Litigation.   There  are  no  actions,  suits,  proceedings,  claims  or          matter for which any Loan Party or Restricted Subsidiary would have any material Environmental  disputes pending or, to the knowledge of the Loan Parties after due and diligent investigation,            Liability; (ii) there are no, or, to the knowledge of any Responsible Officer, never have been any  overtly threatened, at law, in equity, in arbitration or before any Governmental Authority, by or          underground  or  above-ground  storage  tanks  or  any  surface  impoundments,  septic  tanks,  pits,  against any Loan Party or any of its Subsidiaries or against any of its properties, rights or revenues     sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed  that (a) purport to materially and adversely affect or pertain to this Agreement or any other Loan         on  any  property  currently  owned  or  operated  by  any  Loan  Party  or  Restricted  Subsidiary  in  Document, or any of the transactions contemplated hereby, or (b) either individually or in the             violation of any Environmental Laws or, to the knowledge of any Responsible Officer, on any  aggregate would reasonably be expected to have a Material Adverse Effect.                                  property formerly owned or operated by any Loan Party or Restricted Subsidiary; (iii) there is no                                                                                                             friable  asbestos  or  friable  asbestos-containing  material  on  any  property  currently  owned  or        SECTION 3.07       No Default.  No Loan Party or Restricted Subsidiary is in default                 operated  by  any  Loan Party  or  Restricted  Subsidiary;  (iv)  Hazardous  Materials  have not  been  under or  with respect  to  any  Material  Indebtedness.  No  Event of Default  has occurred  and  is      Released, discharged or disposed of on any property currently or formerly owned or operated by  continuing  or  would  result  from  the  consummation  of  the  transactions  contemplated  by  this      any Loan Party or Restricted Subsidiary in violation of any Environmental Laws; and (v) to the  Agreement or any other Loan Document.                                                                      knowledge of any Responsible Officer, there are no pending or threatened Liens under or pursuant                                                                                                             to any applicable Environmental Laws on any real property or other assets owned or leased by any        SECTION 3.08       Ownership of Properties; Liens; Debt.  (a) Each Loan Party and                                                                                                             Loan Party or Restricted Subsidiary, and to the knowledge of any Responsible Officer, no actions  each  Restricted  Subsidiary  has  good  and  marketable  title  in  fee  simple  to  or  valid  leasehold                                                                                                             by any Governmental Authority have been taken or are in process which would subject any of such  interests in, or easements or other limited property interests in, all Real Estate necessary or used                                                                                                             properties or assets to such Liens, except, in the case of clauses (i) through (v) above, as would  in the ordinary conduct of its business, free and clear of all Liens except for minor defects in title                                                                                                             not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  that do not materially interfere with its ability to conduct its business or to utilize such assets for  their intended purposes and Liens permitted by Section 4.06 of Annex I and except as does not                    (b)   No  Loan  Party  or  Restricted  Subsidiary  is  undertaking,  and  no  Loan  Party  or  have and would not reasonably be expected to have a Material Adverse Effect.                               Restricted  Subsidiary  has  completed,  either  individually  or  together  with  other  potentially                                                                                                             responsible parties, any investigation or assessment or remedial or response action relating to any        (a)    There are no Liens on property or assets material to the conduct of the business of                                                                                                             actual or threatened Release, discharge or disposal of Hazardous Materials at any site, location or  each Loan Party and each Restricted Subsidiary, other than Liens permitted pursuant to Section                                                                                                             operation,  either  voluntarily  or  pursuant  to  the  order  of  any  Governmental  Authority  or  the  4.06 of Annex I.                                                                                                             requirements of any  Environmental  Law that has or would reasonably  be  expected to have  a        (b)    As of the Effective Date, Schedule 3.08(c) sets forth a complete and accurate list of         Material Adverse Effect; and all Hazardous Materials generated, used, treated, handled or stored  all Indebtedness of each Loan Party and its Restricted Subsidiaries, in each case in excess of $25         at, or transported to or from, any property currently or formerly owned or operated by any Loan  million, showing the amount, obligor or issuer and maturity thereof and whether such Indebtedness          Party  or  Restricted  Subsidiary  have  been  disposed  of  in  a  manner  not  reasonably  expected,  is secured by a Lien.  As of the Closing Date, no Loan Party has incurred any Indebtedness since           individually or in the aggregate, to have a Material Adverse Effect.  the Effective Date, except as would have been permitted pursuant to Section 4.04 of Annex I or                                                                                                                   SECTION 3.10      Insurance.  The properties of the Loan Parties and the Restricted  pursuant to the Existing Target Credit Agreement.                                                                                                             Subsidiaries are insured with financially sound and reputable insurance companies (including any                                          120                                                                                                       121  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






Captive Insurance Affiliate) in such amounts (after giving effect to any self-insurance), with such        to 51 of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase                                                                                ral                          scheme (both terms as defined in the Pensions Schemes Act 1993); or (ii) connected liability,  business  interruption  and  property  damage  insurance)  as  are  customarily  carried  by    associate                                                                  h an  companies engaged in similar businesses and owning similar properties in localities where the              employer.  applicable Loan Party or Restricted Subsidiary operates.  As of the Closing Date, each material  insurance policy required to be maintained pursuant to Section 5.07 is in full force and effect and              SECTION 3.13      Subsidiaries; Capital Stock.  As of the Effective Date, (a) the Loan  all premiums in respect thereof that are due and payable have been paid.                                   Parties have no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 3.13,                                                                                                             which  Schedule  sets  forth  the  legal  name,  jurisdiction  of  incorporation  or  formation  and  the        SECTION 3.11       Taxes.   Except  as  would  not,  individually  or  in  the  aggregate,           percentage  interest  of  such  Loan  Party  therein;  (b)  the  outstanding  Capital  Stock  in  such  reasonably be expected to have a Material Adverse Effect, the  Loan Parties and the Restricted             Subsidiaries described on Part (a) of Schedule 3.13 as owned by a Loan Party (or a Subsidiary of  Subsidiaries have filed all US federal, state and other tax                  Tax                           a Loan Party) have been validly issued, are fully paid and non-assessable and are owned by a Loan  Returns                                                                                                    Party (or a Subsidiary of a Loan Party) free and clear of all Liens, other than Permitted Liens;  material respects, and have paid when due and payable (subject to any grace periods) all US                (c) except as set forth in Schedule 3.13, there are no outstanding rights to purchase any Capital  federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed         Stock in any Restricted Subsidiary and (d) all of the outstanding Capital Stock in the Loan Parties  upon them or their properties, income or assets otherwise due and payable, except those which are          have  been  validly  issued,  and  are  fully  paid  and  non-assessable and,  with  respect  to  the  Loan  being contested in good faith by appropriate proceedings being diligently conducted, for which             Parties and their direct Subsidiaries, are owned in the amounts specified on Part (c) of Schedule  adequate reserves have been provided in accordance with relevant GAAP, as to which Taxes no                3.13 free and clear of all Liens other than Permitted Liens permitted to be incurred pursuant to  Lien  has  been  filed  and  which  contest  effectively  suspends  the  collection  of  the  contested    Section  4.06  of  Annex  I;  in  each  of  the  foregoing  clauses  (a)  through  (d),  including  such  obligation and the enforcement of any Lien securing such obligation.  There is no proposed tax             modifications or supplements to Schedule 3.13 as have been delivered by the Borrower to the  assessment  against  any  Loan  Party  or  any Restricted  Subsidiary  that  would,  if  made, have  a     Administrative  Agent  from  time  to  time.   As  of  the  Initial  Funding  Date,  the  copies  of  the  Material Adverse Effect.                                                                                   Organization Documents of each Loan Party and each amendment thereto provided pursuant to                                                                                                             Section 4.02 are true and correct copies of each such document, each of which is valid and in full        SECTION 3.12       Benefit Plans.                                                                    force and effect.         (a)    ERISA.  No ERISA Event has occurred or is reasonably expected to occur that,                        SECTION 3.14      Margin Regulations; Investment Company Act.  (a) No Loan Party  when  taken  individually  or  together  with  all  other  such  ERISA  Events,  would  reasonably  be     or Restricted Subsidiary is engaged or will be engaged, principally or as one of its important  expected to result in a Material Adverse Effect.  Except as would not reasonably be expected to            activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation  result in a Material Adverse Effect, the present value of all accumulated benefit obligations under        U), or extending credit for the purpose of purchasing or carrying margin stock.  None of the  each Plan, if such Plan or Plans were to be terminated (based on the assumptions used for purposes         proceeds of the Loans shall be used directly or indirectly for the purpose of purchasing or carrying  of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent          any margin stock, for the purpose of reducing or retiring any Indebtedness that was originally  financial statements reflecting such amounts, exceed the fair market value of the assets of such           incurred to purchase or carry any margin stock or for any other purpose that might cause any of  Plan allocable to such accumulated benefit obligations.                                                                                                                                        (b)    Foreign Pension Plans.   Except  as  would  not reasonably  be  expected  to  result,               (a)   None  of  the  Loan  Parties  or  any  Restricted  Subsidiary  is  or  is  required  to  be  individually or in the aggregate, in  a Material Adverse Effect:  (i) all  employer and employee                                                                                  contributions (including insurance premiums) due to be made in accordance with any applicable  law or by the terms of any Foreign Pension Plan (including any policy held thereunder) from any                  SECTION 3.15      Disclosure.   No  report,  financial  statement,  certificate  or  other  Loan Party or any of its Affiliates have been made, or, if applicable, accrued in accordance with          information furnished (whether in writing or orally) by or on behalf of any Loan Party to the  normal accounting practices; (ii) each Foreign Pension Plan that is required to be registered has          Administrative Agent or any Lender in connection with the transactions contemplated hereby and  been registered and has been maintained in good standing with applicable regulatory authorities;           the negotiation of this Agreement or any other Loan Document or delivered hereunder or under  and (iii) each such Foreign Pension Plan is in compliance (A) with all material provisions of              any other Loan Document (in each case, as modified or supplemented by other information so  applicable  law  and  all  material  applicable  regulations  and  regulatory  requirements  (whether      furnished) contains any material misstatement of fact or omits to state any material fact necessary  discretionary or otherwise) with respect to such Foreign Pension Plan and (B) with the terms of            to make the statements therein, in the light of the circumstances under which they were made, not  such Foreign Pension Plan.                                                                                 materially misleading; provided that, with respect to projected financial information and pro forma                                                                                                             financial information, the Loan Parties represent only that such information was prepared in good        (c)    U.K. Pension Plans.  Except for as set forth on Schedule 3.12(c), no Loan Party or            faith based upon assumptions believed to be reasonable at the time furnished to the Lenders, it  any of its Subsidiaries is or has at any time been (i) an employer (for the purposes of sections 38                                         122                                                                                                       123  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






being understood that such projections may vary from actual results and that such variations may           contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or  be material, and using due care in the preparation of such information, report, financial statement        defraud either present or future creditors of any Loan Party.  or certificate; provided, further  that with respect  to any such information  regarding the  Target  Group and its Restricted Subsidiaries prior to the Closing Date, the foregoing representation and                SECTION 3.21      Trade Relations.  There exists no actual or, to the knowledge of any  warranty shall be made to the knowledge of the Borrower.                                                   Loan Party, threatened, termination or cancellation of, or any material adverse modification or                                                                                                             change in the business relationship of any Loan Party with any supplier material to its operations.        SECTION 3.16       Compliance with Laws.  Each of the Loan Parties and the Restricted  Subsidiaries is in compliance in all material respects with the requirements of all Laws and all                 SECTION 3.22      Material Contracts.  No Loan Party is in breach or in default in any  orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances     material respect of or under any Material Contract and has not received any notice of the intention  in  which  the  failure  to  comply  therewith,  either  individually  or  in  the  aggregate,  would  not of any other party thereto to terminate any Material Contract, in each case, that has had or would  reasonably be expected to have a Material Adverse Effect.                                                  reasonably be expected to have a Material Adverse Effect.         SECTION 3.17       Intellectual  Property;  Licenses,  Etc.   The  Loan  Parties  and  the                 SECTION 3.23      Financial Sanctions List.  No member of the Borrower Group or  Restricted Subsidiaries own, or possess the right to use, all of the Intellectual Property, licenses,      any of its Affiliates or any employee or director of the Borrower Group or its members is on a  permits and other authorizations that are reasonably necessary for the operation of their respective       Sanctions List.  businesses, without conflict with the rights of any other Person except where the failure to have  any such rights, either individually or in the aggregate, would not reasonably be expected to have               SECTION 3.24      Sanctions.  (a) No Group Member or any employee or director of  a Material Adverse Effect.  To the best of the knowledge of the Loan Parties, no slogan or other           the Borrower Group or its members is using or will use the proceeds of this Agreement for the  advertising device, product, process, method, substance, part or other material now employed, or           purpose of financing or making funds available directly or indirectly to any person or entity which  now contemplated to be employed, by any Loan Party or Restricted Subsidiary infringes upon any             is listed on a Sanctions List, or located in a Sanctioned Country, to the extent such financing or  rights held by any other Person except for such infringements, individually or in the aggregate,           provision of funds would be prohibited by applicable Sanctions or would otherwise cause any  that would not reasonably be expected to have a Material Adverse Effect.  No claim or litigation           person to be in breach of applicable Sanctions.  regarding any of the foregoing is pending or, to the best of the knowledge of the Loan Parties,  threatened, which, either individually or in the aggregate, would reasonably be expected to have a               (a)   No Group Member is contributing or otherwise making available the proceeds of  Material Adverse Effect.                                                                                   this Agreement to any other person or entity for the purpose of financing the activities of any                                                                                                             person or entity which is listed on a Sanctions List, or located in a Sanctioned Country, to the        SECTION 3.18       Labor  Matters.   Except  as  would  not,  individually  or  in  the              extent such contribution or provision of proceeds would be prohibited by applicable Sanctions or  aggregate, reasonably be expected to have a Material Adverse Effect, there are no strikes, lockouts,       would otherwise cause any person to be in breach of applicable Sanctions.  slowdowns or other material labor disputes against any Loan Party or any Restricted Subsidiary  pending or, to the knowledge of any Loan Party, threatened.  The hours worked by and payments                    (b)   To the best of its knowledge and belief (having made due and careful enquiry) no  made to employees of the Loan Parties and the Restricted Subsidiaries have not been in violation           Group Member:  (i) has been or is targeted under any Sanctions; or (ii) has violated or is violating  of the Fair Labor Standards Act and any other applicable federal, state, local or foreign Law dealing      any applicable Sanctions.  with such matters in any material respect.                                                                                                                   SECTION 3.25      Anti-Terrorism; Anti-Corruption.  To the extent applicable, each of        SECTION 3.19       Security  Documents.   Subject  to  the  Legal  Reservations,  the                the Loan Parties and the Restricted Subsidiaries is in compliance in all material respects with (a)  Security Documents create or will create when executed, to the extent purported to be created              the Trading with the Enemy Act, and each of the foreign assets control regulations of the United  thereby, in favor of the Collateral Agent, for the benefit of the Secured Parties referred to therein,     States Treasury Department (31 C.F.R., Subtitle B, Chapter V) and any other enabling legislation  a legal, valid, continuing and enforceable security interest in the Collateral, the enforceability of      or executive order relating thereto, and (b) the USA PATRIOT Act; and (c) anti-corruption laws  which is subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws            and regulations,                            BA                                                                                                                                   FCPA whether considered in a proceeding in equity or at law.                                                    or indirectly, by an Group Member for any payments to any governmental official or employee,                                                                                                             political party, official of a political party, candidate for political office, or anyone else acting in        SECTION 3.20       Solvency.  (a) As of the Initial Funding Date, after giving pro forma             an official capacity, in order to obtain, retain or direct business or obtain any improper advantage  effect to the Transactions, the Borrower is Solvent.                                                       or otherwise in violation of any applicable anti-bribery laws and regulations, including the BA and                                                                                                             FCPA.  The Borrower confirms to each Lender that any Loans made to it under this Agreement        (a)    No  transfer  of  property  has  been  or  will  be  made  by  any  Loan  Party  and  no      will be made solely for its own account or for the account of a member of the Borrower Group.    obligation has been  or  will  be  incurred by any  Loan  Party  in  connection  with the  transactions                                         124                                                                                                       125  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






      SECTION 3.26       Center of Main Interest.  To the extent applicable, for the purposes                      specified person or persons to execute the Loan Documents to which it is a party on its                                                                             COMI                                    behalf; and (C) authorizing a specified person or persons, on its behalf, to sign and/or  Regulation      center of main interest                                                                            deliver all documents and notices (including, if relevant, any Borrowing Request) to be  of each U.K. Loan Party and Luxembourg Loan Party is situated in its jurisdiction of incorporation                 signed and/or delivered by it under or in connection with the Loan Documents to which                                                        establishment                                                it is a party.  used in Article 2(10) of the COMI Regulation) in any other jurisdiction.                                                                                                                           (iv)   A specimen of the signature of each person authorised by the resolution                                                                                                                     in relation to the Loan Documents and related documents.                                      ARTICLE IV                                                                            (v)                                                                                                                     applicable) of each Loan Party in a form reasonably satisfactory to the Administrative                             CONDITIONS OF LENDING                                                                   Agent.         SECTION 4.01       Conditions to Effectiveness.  The effectiveness of this Agreement                               (vi)   A Borrowing Request with respect to the Initial Draw Term Loans and  and  the  Commitments  of the  Lenders  to  make  any Credit Extension hereunder on  the  Initial                  any Revolving Credit Loans to be made on the Closing Date meeting the requirements  Funding Date and Delayed Draw Funding Date are subject to the satisfaction of the following                        of Section 2.03 (without prejudice to the conditions precedent for such Borrowing set  conditions:                                                                                                        forth in this Section 4.02).         (a)    The Administrative Agent shall have received this Agreement duly executed and                               (vii)  delivered (or counterparts hereof) by the Borrower.                                                                arrangement or similar arrangement to provide funds for the payment of interest and                                                                                                                     fees  incurred  prior  to  the  Closing  Date,  executed  by  an  affiliate  of  the  Borrower        (b)    The  Agent  Fee  Letter shall  have  been duly  executed  by  the  Borrower  and  the                                                        Keepwell Arrangement  provided that  Administrative Agent.                                                                                                                     time of submitting the initial Borrowing Request, the Closing Date is expected to occur        SECTION 4.02       Conditions to Initial Funding.  The obligations of the Lenders to                         after the date is 1 Business Day after the Initial Funding Date, as notified in writing by  make any Credit Extension hereunder on the Initial Funding Date are subject to the satisfaction (or                the Borrower to the Administrative Agent on the date of such initial Borrowing Request  waiver by the Lead Arrangers) of the following conditions:                                                         and (B) to the extent the Borrower reasonably expected such Closing Date to occur on                                                                                                                     the Business Day immediately after the Initial Funding Date, but the Closing Date does        (a)    The Initial Funding Date shall be a Business Day on or before the Longstop Date.                                              Expected Closing Date                                                                                                                    shall be required to be provided on or prior to 5 p.m. (New York time) on the Expected        (b)    The Administrative Agent shall have received, on behalf of itself and the Lenders,                                                                                                                     Closing Date.  a legal opinion of Ropes & Gray International LLP, New York counsel for the Borrower, in form  reasonably acceptable to the Administrative Agent (i) dated the Initial Funding Date, (ii) addressed             (d)   The Administrative Agent shall have received, at least three Business Days prior to  to the Administrative Agent, the Collateral Agent and the Lenders and (iii) covering such other            the  Initial  Funding  Date,  all  documentation  and  other  information  required  by  regulatory  matters relating to the Loan Documents and the Transactions as the Administrative Agent shall              au                                                    -money  laundering  rules  and  reasonably request, and the Borrower hereby requests such counsel to deliver such opinions.                regulations, including the USA PATRIOT Act, that has been reasonably requested by the Lenders                                                                                                             at least ten days prior to the Initial Funding Date.        (c)    The Administrative Agent (or its counsel) shall have received:                                                                                                                   (e)   The Administrative Agent shall have received, at least three Business Days prior to                 (i)   A copy of the Organization Documents of each Loan Party.                                                                                                             the Initial Funding Date, a Beneficial Ownership Certification for the Borrower to the extent that                 (ii)  A certificate of good standing in respect of each U.S. Loan Party.                                                                                                                                                                                                                 reasonably requested by the Lenders at least ten days prior to the Initial Funding Date.                 (iii) A copy of a resolution of the board or, if applicable, a committee of the           board, of directors of each Loan Party (A) approving the terms of, and the transactions                 (f)   (i) The Acquisition Agreement shall not have been  (and shall not be) modified,           contemplated by, the Loan Documents to which it is a party and resolving that it execute,         amended or waived in any respect that is material and adverse to the Lead Arrangers or the Lenders           deliver  and perform  the  Loan  Documents  to which it is a  party;  (B)  authorizing  a         (as reasonably determined by the Borrower in consultation with the Lead Arrangers) without the                                                                                                             prior consent of the Lead Arrangers (it being understood and agreed that any increase or reduction                                         126                                                                                                       127  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






in the purchase price for the Acquisition shall not be deemed to be materially adverse to the                      to the Commitment Parties (as defined in the Commitment Letter) on the Closing Date  Lenders; provided that any increase in the purchase price for the Acquisition shall not be funded                  shall have been paid.  by Indebtedness of the Borrower or any of its Restricted Subsidiaries) and (ii) the Acquisition  Agreement remains in full force and effect.                                                                      Notwithstanding the foregoing, to the extent any security interest in any Collateral of the                                                                                                             Borrower or the Parent Guarantor (other than to the extent a Lien on such Collateral may be        (g)    A certificate from the chief financial officer (or other Responsible Officer) of the          perfected by the filing of a financing statement under the Uniform Commercial Code) is not or  Borrower, substantially in the form attached as Exhibit I hereto, certifying that the Borrower is  Solvent (after giving effect to the Transactions on a pro forma basis).                                    use of commercially reasonable efforts to do so or without undue burden or expense, the provision                                                                                                             and/or perfection of security interests in such Collateral shall not constitute a condition precedent        (h)    Each Major Representation and Specified Acquisition Agreement Representation                  to the availability or initial funding of the Term Facilities or Revolving Credit Facilities on the  (collectively,  Initial  Funding  Date  Representations                                                    Initial Funding Date but shall instead be required to be delivered, provided, and/or perfected within  respects (except for Initial Funding Date Representations that are already qualified by materiality        30 days after the Initial Funding Date (or such later date as may be reasonably agreed by the                                                                 true and correct in all                     Borrower and the Administrative Agent).   Initial Funding Date (unless such Initial Funding Date Representations relate to an earlier date, in             SECTION 4.03      Conditions  to  All  Credit  Extensions.  The  obligations  of  the  which case, such Major Representations shall have been true and correct in all material respects                                                                  Borrowing Date (except  for  Initial  Funding  Date  Representations  that  are  already  qualified  by  materiality  or  on the Initial Funding Date, Delayed Draw Funding Date or on the Borrowing Date under any                                                                                all                          Incremental Loan Assumption Agreement, Extension Amendment or Refinancing Amendment)                                                                                                             are subject to the satisfaction of the following conditions:  such  earlier  date); provided  that  to  the  extent  any  of  the  Specified  Acquisition  Agreement                                                                                                                   (a)   (i) (x) in the case of any Revolving Credit Borrowing proposed to be made after the                                                                                                             Initial Funding Date but prior to the Closing Date, (1) the representations and warranties made by  such representations and warranties made or to be made on, or as of, the Initial Funding Date.             the Borrower set forth in Sections 3.14, 3.24(a) and the second sentence of Section 3.25 (in the                                                                                                             case of Section 3.24(a) and 3.25 solely with respect to the use of the proceeds of such Revolving        (i)    The  Borrower  and  Parent  Guarantor  shall  have  duly  executed  the  (i)  Facility        Credit Borrowing), be true and correct in all material respects (except that this materiality qualifier  Guaranty,  (ii) the U.S. Pledge and Security Agreement and (iii) the Closing Date  Intercreditor           shall not be applicable to any representation or warranty that is already qualified by materiality or  Agreement.                                                                                                  Material Adverse Effect                                                                                                            made on and as of such date, except to the extent such representations and warranties expressly        (j)    Since the date of the Acquisition Agreement, there shall not have occurred any                relate to an earlier date, in which case such representations and warranties shall be true and correct  Effect (as defined in the Acquisition Agreement) that, individually, or in the aggregate, has had a        in  all  material  respects  (except  that  this  materiality  qualifier  shall  not  be  applicable  to  any  Company Material Adverse Effect (as defined in the Acquisition Agreement) that would result in             representation or warranty that is alre                  Material Adverse Effect the failure of a condition precedent to the obligations of the Borrower and/or the Parent Guarantor        on and as of such earlier date, (2) the condition set forth in Section 4.02(f) is satisfied on and as of  to consummate the Acquisition under the Acquisition Agreement or that would give the Borrower              the date of such Borrowing and (y) in the case of any other Credit Extension, the representations  or the Parent Guarantor the right (taking into account any notice and cure provisions) to terminate        and warranties set forth in Article III and in each other Loan Document shall be true and correct  its obligations pursuant to the terms in the Acquisition Agreement.                                        in  all  material  respects  (except  that  this  materiality  qualifier  shall  not  be  applicable  to  any                                                                                                                                                                      Material Adverse Effect       (k)    In addition to the conditions specified in this Section 4.02, if the Initial Funding          on and as of the date of such Borrowing with the same effect as though made on and as of such  Date occurs on the Closing Date, the following conditions shall also apply:                                date, except to the extent such representations and warranties expressly relate to an earlier date, in                                                                                                             which case such representations and warranties shall be true and correct in all material respects                 (i)   The Existing Facilities Refinancing shall have been consummated prior                 (except that this materiality qualifier shall not be applicable to any representation or warranty that           to, or shall be made or consummated concurrently with, the initial Borrowing on the                                               Material Adverse Effect          Initial Funding Date.                                                                             and (ii) other than in the case of any Revolving Credit Borrowing proposed to be made after the                                                                                                             Initial Funding Date and prior to the Closing Date, no Default shall exist or would result from such                 (ii)  All fees and expenses (in the case of expenses, to the extent invoiced at                                                                                                             proposed Credit Extension or the application of the proceeds therefrom.           least three Business Days prior to the Closing Date but excluding any legal fees and           expenses (except as otherwise reasonably agreed by the Borrower)) required to be paid                                          128                                                                                                       129  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






      (b)    The Administrative Agent shall have received a Request for Credit Extension as                in writing, the Borrower and each Guarantor will, and will, to the extent provided below, cause  required by Article II.                                                                                    each of the Restricted Subsidiaries to comply with the covenants set forth in Annex I and to:         Each Request for Credit Extension (other than a Borrowing Request requesting only a                        SECTION 5.01      Projections.  Deliver to the Administrative Agent (for distribution  conversion of Loans to the other Type or a continuation of Eurodollar Loans) submitted by the              to each Lender), as soon as available, but in any event no more than 90 days after the end of each  Borrower after the Initial Funding Date pursuant to this Section 4.03 shall be deemed to be a              fiscal  year  commencing  with  the  fiscal  year  during  which  the  Closing  Date  occurs,  forecasts  representation and warranty that the conditions specified in Sections 4.03(a) and (b) have been            prepared using fiscal periods for any applicable fiscal years (including, if applicable, the fiscal  satisfied on and as of the date of the applicable Credit Extension.                                        year in which the Maturity Date occurs) as customarily prepared by management of the Borrower                                                                                                                                    Projections                                a  certificate  of  a        SECTION 4.04       Conditions to the Delayed Draw Term Loans.  The obligations of                    Responsible Officer stating that such Projections have been prepared in good faith on the basis of  the Lenders to make any Delayed Draw Term Loans hereunder on the Delayed Draw Funding Date                 the assumptions stated therein, which assumptions were believed to be reasonable at the time of  are subject to the satisfaction of the following conditions:                                               preparation  of  such  Projections,  it  being  understood  that  actual  results  may  vary  from  such                                                                                                             Projections and that such variations may be material.        (a)    (i) The Closing Date shall have occurred and (ii) the Existing Facilities Refinancing  shall have occurred.                                                                                             SECTION 5.02      Certificates; Other Information.  (a) Deliver to the Administrative                                                                                                                                                                 er, in form and detail satisfactory        (b)    All fees and expenses (in the case of expenses, to the extent invoiced at least three         to the Administrative Agent:  Business Day prior to the Delayed Draw Funding Date but excluding any legal fees and expenses  (except as otherwise reasonably agreed by the Borrower)) required to be paid to the Commitment                           (i)    promptly  after  the  receipt  thereof  by  the  Borrower  and  its  Restricted  Parties (as defined in the Commitment Letter) on the Delayed Draw Funding Date shall have been  paid.                                                                                                              certified public accountants and the                             (c)    The Delayed Draw Funding Date shall be a Business Day on or before the Delayed                              (ii)   promptly after the request by the Administrative Agent or any Lender,  Draw Termination Date.                                                                                             all documentation and other information that the Administrative Agent or such Lender                                                                                                                     reasonably requests in order to comply with its ongoing obligations under applicable        (d)    A certificate from the chief financial officer (or other Responsible Officer) of the                                            -money laundering rules and regulations, including the  Borrower  certifying that  immediately  before  and  after the  making  of  the  Delayed  Draw  Term               USA PATRIOT Act and the Beneficial Ownership Regulation; and  Loans no Event of Default shall occur or be continuing under Section 7.01(a) and 7.01(g) of this  Agreement, with respect to the Borrower.                                                                                 (iii)  promptly,  such  additional  information  regarding  the  business  affairs,                                                                                                                     financial condition or operations of any Loan Party or any Subsidiary, or compliance        (e)    The Administrative Agent shall have received a Borrowing Request meeting the                          with the terms of the Loan Documents, as the Administrative Agent or any Lender may  requirements of Section 2.03 (without prejudice to the conditions precedent for such Borrowing                     from time to time reasonably request.  set forth in this Section 4.04).                                                                                                                   (b)   Documents required to be delivered pursuant to Section 4.10 of Annex I may be                                     ARTICLE V                                                               delivered electronically and if so delivered, shall be deemed to have been delivered on the date                                                                                                             (i) specified in Section 9.01 with respect to e-mail communications, (ii) on which the Borrower                                    COVENANTS                                                                                                                                         et at the                                                                                                             website address listed on Schedule 9.01(a); or (iii) on which such documents are posted on the        The Borrower and each Guarantor covenant and agree with each Lender that from and after                                                    t  website,  if  any,  to  which  each  Lender  and  the  the Closing Date, so long as this Agreement shall remain in effect, and until the Commitments              Administrative  Agent  have  access  (whether  a  commercial,  third-party  website  or  whether  have been terminated and the principal of and interest on each Loan and all fees and all other             sponsored  by  the  Administrative  Agent);  provided,  that  (x)  the  Borrower  shall  notify  the  expenses or amounts payable under any Loan Document shall have been paid in full (other than               Administrative  Agent  and  each  Lender  (by  telecopier  or  e-mail)  of  the  posting  of  any  such  contingent indemnification obligations not then due and payable), or any Letter of Credit shall            documents  and  (y)  if  for  any  reason  the  Administrative  Agent  is  unable  to  obtain  electronic  remain outstanding (unless the Outstanding Amount of the L/C Obligations related thereto has  been  Cash  Collateralized  or  back-stopped  by  a  letter  of  credit  reasonably  satisfactory  to  the the  Administrative  Agent  by  electronic  mail  electronic  versions  (i.e.,  soft  copies)  of  such  applicable L/C Issuer or such Letter of Credit has been deemed reissued under another agreement            documents.   The  Administrative  Agent  shall  have  no  obligation  to  request  the  delivery  or to  reasonably acceptable to the L/C Issuer), or unless the Required Lenders shall otherwise consent           maintain copies of the documents referred to above, and in any event shall have no responsibility                                         130                                                                                                       131  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






to monitor compliance by the Loan Parties with any such request for delivery, and each Lender                    SECTION 5.05      Preservation of Existence.  (a) Preserve, renew and maintain in full  shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.     force and effect its legal existence and good standing under the Laws of the jurisdiction of its                                                                                                             organization or formation except in a transaction permitted by Article V of Annex I if, other than        (c)    The Borrower hereby acknowledges and agrees that all financial statements and                 in respect of the Borrower, the failure to do so would reasonably be expected to have, individually  certificates furnished pursuant to Section 4.10(a)(1) and Section 4.10(a)(2) of Annex I are hereby         or  in the  aggregate,  a  Material  Adverse  Effect;  provided, however  that in  no event  shall  the  deemed to be Borrower Materials suitable for distribution, and to be made available, to Public             Borrower change its jurisdiction of organization to a jurisdiction other than the United States of  Lenders, as contemplated by Section 9.01(f) and may be treated by the Administrative Agent and             America, or any State of the United States or the District of Columbia; (b) take all necessary action  the Lende                                                                                                  to maintain and keep in full force and effect all rights, privileges, permits, licenses and franchises                                                                                                             material to the normal conduct of its business if the failure to do so would reasonably be expected        SECTION 5.03       Notices.  Promptly notify the Administrative Agent of:  (a) as soon               to have, individually or in the aggregate, a Material Adverse Effect; and (c) preserve or renew all  as possible after a Responsible Officer of the Borrower knows thereof, the occurrence of any               of its intellectual property, except to the extent such intellectual property (i) is no longer used or  Default or Event of Default, specifying the nature and extent thereof and the corrective action (if        useful in the business of any Loan Party or Restricted Subsidiary and (ii) is not otherwise material  any) taken or proposed to be taken with respect thereto;                                                   to the business of the Loan Parties and Restricted Subsidiaries, taken as a whole, in any respect.         (a)    as soon as possible after a Responsible Officer of the Borrower knows thereof, any                  SECTION 5.06      Maintenance of Properties.  (a) Maintain, preserve and protect all  filing or commencement of, or any written threat or notice of intention of any person to file or           of its material properties and equipment material to the operation of its business in good working  commence, any action, suit, litigation or proceeding, whether at law or in equity by or before any         order  and  condition,  ordinary  wear  and  tear  excepted;  and  (b)  make  all  repairs  thereto  and  Governmental Authority against the Borrower or any of the Restricted Subsidiaries that could               renewals, improvements, additions and replacements thereof necessary in order that the business  reasonably be expected to result in a Material Adverse Effect; and                                         carried on in connection therewith may be properly conducted at all times except, in each case, if                                                                                                             the failure to do so would not reasonably be expected to have, individually or in the aggregate, a        (b)    promptly upon becoming aware of the occurrence of any ERISA Event that would                  Material Adverse Effect.  reasonably be expected to result in a Material Adverse Event, a written notice specifying the nature  thereof, what action the Borrower, any of its Restricted Subsidiaries or any of their respective                 SECTION 5.07      Maintenance  of  Insurance.   Maintain  with  insurance  companies  ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known,            that the Borrower believes (in the good faith judgment of its management) are financially sound  any action taken or threatened by the Internal Revenue Service, the Department of Labor or the             and reputable insurance companies at the time the relevant coverage is placed or renewed and that  PBGC with respect thereto.                                                                                 are not Affiliates of the Loan Parties, insurance with respect to its properties and business against                                                                                                             loss or damage of the kinds customarily insured against by Persons engaged in the same or similar        Each  notice  pursuant  to  this  Section  5.03  shall  be  accompanied  by  a  statement  of  a     business and operating in the same or similar locations (after giving effect to any self-insurance  Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and        reasonable and customary for similarly situated Persons engaged in a Similar Business).  stating what action the Borrower has taken and proposes to take with respect thereto.  Each notice  pursuant  to  Section  5.03(b)  shall  describe  with  particularity  any  and  all  provisions  of  this        SECTION 5.08      Compliance with Laws.  Comply in all material respects with the  Agreement and any other Loan Document that have been breached.                                             requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its                                                                                                             business or property, except in such instances in which the failure to comply therewith would not        SECTION 5.04       Payment  of  Obligations.   Pay  and  discharge  as  the  same  shall             reasonably be expected to have a Material Adverse Effect.  become  due  and  payable,  all  its  obligations  and  liabilities,  including  (a)  all  material  Taxes,  assessments and governmental charges or levies upon it or its properties, assets, income or profits              SECTION 5.09      Books  and  Records;  Accountants;  Maintenance  of  Ratings.   before the same shall have become delinquent or in default, (b) all lawful claims (including claims        (a) Maintain  proper  books  of  record  and  account,  in  which  full,  true  and  correct  entries  in  of landlords, warehousemen, freight forwarders and carriers, and all claims for labor materials and        conformity with GAAP, IFRS, or local generally accepted accounting principles, as the case may  supplies or otherwise) which, if unpaid, would by law become a Lien upon its property; and (c) all         be, consistently applied shall be made of all financial transactions and matters involving the assets  Indebtedness, as and when due and payable, but subject to any subordination provisions contained           and business of the Loan Parties or such Subsidiary, as the case may be; and maintain such books  in any instrument or agreement evidencing such Indebtedness, except, in each case under clauses            of record and account in material conformity with all applicable requirements of any Governmental  (a), (b) or (c), where (i)  (A) the validity or amount thereof is being contested in good faith by         Authority having regulatory jurisdiction over the Loan Parties or such Subsidiary, as the case may  appropriate proceedings, (B) such Loan Party has set aside on its books adequate reserves with             be.  respect thereto in accordance with GAAP and (C) such contest effectively suspends collection of  the contested obligation and enforcement of any Lien securing such obligation or (ii) the failure to             (a)   At  all  times  retain  a  Registered  Public  Accounting  Firm  which  is  reasonably  pay or discharge the same would not reasonably be expected to result in a Material Adverse Effect.         satisfactory to the Administrative Agent and shall instruct such Registered Public Accounting Firm                                                                                                             to cooperate with, and be available to, the Administrative Agent or its representatives to discuss,                                         132                                                                                                       133  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






                                                                                                           agreements and instruments, and take all such further actions (including the filing and recording  condition, operating results, controls, and such other matters, within the scope of the retention of       of financing statements and other documents) which the Administrative Agent may reasonably  such Registered Public Accounting Firm, as may be raised by the Administrative Agent.                      request, to carry out the terms and conditions of this Agreement and the other Loan Documents                                                                                                             and to establish, maintain, renew, preserve or protect the rights and remedies of Administrative        (b)    Use commercially reasonable efforts to cause the Term Facility to be continuously             Agent and other Secured Parties hereunder and under the other Loan Documents, or to grant,                                                                                                             preserve, protect or perfect the Liens created or intended to be created by the Security Documents  from S&P and a corporate fami                                                                              or the validity or priority of any such Lien, all at the expense of the Loan Parties.  The Loan Parties                                                                                                             agree to provide to the Administrative Agent, from time to time upon its reasonable request,        SECTION 5.10       Inspection  Rights.   Subject  to  any  applicable  confidentiality               evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of  undertakings or stock exchange regulations, permit representatives and independent contractors of          the Liens created or intended to be created by the Security Documents.  the  Administrative  Agent  to  visit  and  inspect  any  of  its  properties,  to  examine  its  corporate,  financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its              SECTION 5.14      Post-Closing Guarantee and Security Requirements. Cause (a) (i)  affairs, finances and accounts with its directors, officers, and Registered Public Accounting Firm         each Subsidiary of the Borrower set forth on Schedule 5.14(a) Initial U.S. Loan Party at such reasonable times during normal business hours upon reasonable advance notice to the                subject to the Agreed Security Principles, each Subsidiary of the Borrower set forth on Schedule  Borrower; provided that the Administrative Agent shall not exercise such rights more than twice            5.14(b)    Initial  Non-U.S.  Loan  Party (ii)  each  Material  Subsidiary  (other  than  an  in any calendar year and only one such exercise will be at the expense of the Loan Parties; provided       Excluded  Subsidiary),  subject  to  the  Agreed  Security  Principles,  to  (A)  become  a  Guarantor  further that when an Event of Default exists, the Administrative Agent (or any of its representatives      hereunder by executing and delivering to the Administrative Agent a Facility Guaranty Joinder  or independent contractors) may do any of the foregoing at the expense of the Loan Parties at any          and execute and deliver a Closing Date Intercreditor Agreement Supplement to the Administrative  time during normal business hours upon reasonable advance notice to the Borrower.                          Agent and Collateral Agent and grantor supplements or acknowledgements with respect to any                                                                                                             other Intercreditor Agreement then in effect, (B) become a Grantor under the U.S. Pledge and        SECTION 5.11       Use of Proceeds.  (a) Apply the proceeds of the Initial Draw Term                 Security Agreement by executing and delivering to the Collateral Agent (along with copies to the  Loans on the Closing Date, and the proceeds of the Delayed Draw Term Loans, on the Delayed                 Administrative Agent) a Pledge Supplement or become a Grantor under any Non-U.S. Security  Draw Funding Date, to consummate the Transactions including, for the avoidance of doubt, the               Documents,  by  executing  and  delivering  to  the  Collateral  Agent  (along  with  copies  to  the  Existing Facilities Refinancing and the Change of Control Tender.                                          Administrative Agent) such Non-U.S. Security  Documents or supplements  thereto, as may be                                                                                                             required to confer on the Collateral Agent security over the Collateral no later than (x) 2 Business        (a)    Apply any amount drawn under the Revolving Credit Facilities (i) (A) on and after             Days after the Closing Date (in the case of any Initial U.S. Loan Party), (y) 90 days after the  the Initial Funding Date to fund any interest with respect to any Term Loans or Senior Secured             Closing Date (in the case of any Initial Non-U.S. Loan Party) or (z) 30 days after the date the  Notes (in an aggregate amount for this clause (A) not to exceed $100,000,000) and (B) on and               relevant Restricted Subsidiary becomes a Material Subsidiary (other than an Excluded Subsidiary),  after the Closing Date to consummate the Transactions and for working capital purposes, in an              or  in  each  case,  such  later  date  as  may  be  reasonably  agreed  by  the  Borrower  and  the  aggregate amount for clause (i) of this sub-paragraph (b) not to exceed the Closing Date Revolving         Administrative Agent and (C) execute and/or deliver to the Administrative Agent and Collateral  Available Amount, and (ii) after the Closing Date, for working capital, capital expenditures and           Agent  as applicable  (x)  customary  legal opinions  of counsel to  the  Borrower in  the respective  general corporate purposes (including acquisitions, Permitted Investments, Restricted Payments             Covered  Jurisdiction  of such  Subsidiary,  in  form  reasonably  acceptable  to  the  Administrative  and other transactions not prohibited by this Agreement).                                                  Agent, addressed to the Administrative Agent, the Collateral Agent and the Lenders and covering                                                                                                             substantially the same matters relating to the  Loan  Documents as the  matters covered in any        (b)    The Borrower will not request any Borrowing, and the Borrower shall not use,                                                                                                             opinion  provided  on  the  Initial  Funding  Date  pursuant  to  Section  4.02,  other than  where the  directly or indirectly, and shall procure that no Group Member will, directly or indirectly,  use the                                                                                                             customary practice in the relevant jurisdiction differs with respect to providing opinions, in which  proceeds of any Borrowing (i) for the purpose of funding, financing or facilitating any activities,                                                                                                             case such opinions may be provided by counsel to the Administrative Agent, (y) the documents  business or transaction of or with any person or entity which is listed on a Sanctions List or owned                                                                                                             specified in clauses Section 4.02(c)(i)  (v), substantially in the same form as agreed to be provided  or controlled by a person or entity listed on a Sanctions List, or in any Sanctioned Country, or (ii)                                                                                                             with respect to the Borrower as of the Initial Funding Date, subject to any changes required by the  in any manner that would result in the violation of any Sanctions applicable to any party hereto.                                                                                                             law of the jurisdiction of organization of the relevant Loan Party or customary for such jurisdiction;        SECTION 5.12       Information  Regarding  the  Collateral.   Furnish  to  the                       provided that (i) in the case of any Luxembourg Loan Party or U.K. Loan Party, such documents  Administrative Agent  and  the  Collateral  Agent  any information  regarding  the  Collateral  or  a      shall include the documents set forth in Schedule 5.14(c) as applicable and (ii) in the case of any  Guarantor that is required to be provided pursuant to the U.S. Pledge and Security Agreement.              Loan Party organized under the laws of Hong Kong, such documents shall include the customary                                                                                                             shareholder resolutions and (z) if required by the relevant Security Documents, stock, share or        SECTION 5.13       Further Assurances.  Subject to the applicable limitations set forth              membership certificates and corresponding blank powers or equivalent transfer forms as applicable  in the Agreed Security Principles, execute any and all further documents, financing statements,            with respect to the Administrative Borrower, the Subsidiary Revolver Borrower and the Restricted                                         134                                                                                                       135  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






Subsidiaries  of  the  Administrative  Borrower  (except  the  extent  constituting  Excluded  Assets      Party  owns  the  Capital  Stock  of  any  Restricted  Subsidiary  that  is  organized  in  a  Covered  pursuant to clause (l) thereof); provided that with respect to the (i) Initial U.S. Loan Parties, such     Jurisdiction and such Capital Stock constitutes Collateral, such Loan Party shall, if applicable, be  delivery shall be required within 30 days after the Closing Date, (ii) Initial Non-U.S. Loan Parties,      required to provide a pledge of the Capital Stock of such Restricted Subsidiary governed by the  such delivery shall be required within 90 days after the Closing Date and (iii) in all other cases         laws of the jurisdiction of organization of such Restricted Subsidiary to the extent such local law  with 30 days after the date the relevant Restricted Subsidiary becomes a Material Subsidiary (other        pledge agreement is required to perfect the Lien of the Collateral Agent, (vii) in no event will the  than an Excluded Subsidiary), or in each case, such later date as may be reasonably agreed by the          Collateral include any Excluded Asset, (viii) no Loan Party shall be required to perfect a security  Administrative Agent.                                                                                      interest in any asset to the extent perfection of a security interest in such asset would be prohibited                                                                                                             under any applicable requirement of Law, (ix) any Lien required to be granted from time to time        (a)    Notwithstanding anything to the contrary herein or in any other Loan Document, it             pursuant to this Section 5.14 shall be subject to the exceptions and limitations set forth in the  is understood and agreed that (i) the Administrative Agent may grant extensions of time for the            Security Documents and (x) the Administrative Agent shall not require the taking of a Lien on, or  creation  and perfection  of  security interests  in,  or obtaining of  title  insurance,  legal  opinions, require the perfection of any Lien granted in, those assets as to which the cost of obtaining or  surveys  or  other  deliverables  with  respect  to,  particular  assets  or  the  provision  of  any  Loan perfecting such Lien (including any mortgage, stamp, intangibles or other Tax or expenses relating  Guarantee  by  any  Restricted  Subsidiary  (in  connection  with  assets  acquired,  or  Restricted       to such Lien) is excessive in relation to the benefit to the Lenders of the security afforded thereby  Subsidiaries formed or acquired, after the Closing Date), and each Lender hereby consents to any           as reasonably determined by the Borrower.  such  extension  of  time,  (ii)  any  joinder  or  supplement  to  any  Loan  Guarantee,  any  Security  Document or any other Loan Document executed by any Restricted Subsidiary that is required to                    SECTION 5.15      Sanctions.   (a)  Not  contribute  or  otherwise  make  available  the  become a Loan Party pursuant to this Section 5.14 may, with the consent of the Administrative              proceeds of this Agreement, directly or indirectly, to any person or entity (whether or not related  Agent  (not to  be  unreasonably  withheld,  conditioned  or  delayed), include such  schedules (or        to any member of the Borrower Group) for the purpose of financing the activities of any person or  updates to schedules) or limitations as may be necessary to qualify any representation or warranty         entity which is listed on a Sanctions List, or owned or controlled by a person or entity listed on a  with respect to such Restricted Subsidiary set forth in any Loan Document to the extent necessary          Sanctions List, or currently located in a Sanctioned Country, to the extent such contribution or  to ensure that such representation or warranty is true and correct to the extent required thereby or       provision of proceeds would be prohibited by applicable Sanctions or would otherwise cause any  by the terms of any other Loan Document, (iii) no Loan Party shall be required to seek any landlord        person to be in breach of applicable Sanctions.  waiver,  bailee  letter, estoppel, warehouseman  waiver or  other  collateral  access,  lien waiver  or  similar letter or agreement, (iv) no Loan Party shall be required to take any supplemental perfection            (a)   Fund all or part of any repayment of an Obligation under this Agreement out of  action with respect to Collateral constituting intellectual property, other than any supplemental          proceeds derived from transactions which would be prohibited by applicable Sanctions or would  filings in its own jurisdiction of incorporation or organization except for (and subject to the Agreed     otherwise cause any person to be in breach of applicable Sanctions.  Security Principles) any supplemental perfection filings in a Covered Jurisdiction with respect to  any Collateral constituting material intellectual property that any Loan Party owns in any Covered               (b)   Ensure that appropriate controls and safeguards are in place designed to prevent  Jurisdiction, (v) in no event shall notices be required to be sent, nor shall the Administrative Agent     any proceeds of any Credit Extension hereunder from being used contrary to Section 5.15(a).  or Collateral Agent be permitted to send to account debtors or other contractual third-parties prior  to the occurrence and during the continuation of an acceleration of the Obligations pursuant to                  SECTION 5.16      People with Significant Control Regime.  Each Loan Party and its  Section 7.01, (vi) (x) no U.S. Loan Party will be required to (A) subject to clause (b)(iv) above,         Subsidiaries shall (a) within the relevant timeframe, comply with any notice it receives pursuant  take any action outside the U.S. to grant or perfect any security interest in any asset located outside    to Part 21A of the Companies Act 2006 from any company incorporated in the United Kingdom  of the U.S. (other than as may be perfected by the filing of a UCC financing statement), (B) execute       whose shares are the subject of a Lien in favor of the Collateral Agent, and (b) promptly provide  any security agreement, pledge agreement, mortgage, deed or charge governed by the laws of a               the Administrative Agent with a copy of that notice.  jurisdiction  other  than  the  U.S.  or  (C)  subject  to  clause  (b)(iv)  above,  make  any  intellectual                                                                                                                     property filing, conduct any intellectual property search or prepare any schedule of intellectual  property, in each case, in a jurisdiction other than the U.S. and (y) subject to the Agreed Security                                         ARTICLE VI  Principles, no Non-U.S. Loan Party will be required to (A) subject to clause (b)(iv) above, take                                                     any action outside its jurisdiction of organization to grant or perfect any security interest in any                                   FINANCIAL COVENANT  asset located outside of its jurisdiction of organization, (B) execute any security agreement, pledge  agreement,  mortgage,  deed  or  charge  governed  by  the  law  of  a  jurisdiction  other  than  its           From and after the Closing Date, so long as this Agreement shall remain in effect, and until  jurisdiction of organization or (C) subject to clause (b)(iv) above, make any intellectual property        the Commitments have been terminated and the principal of and interest on each Loan and all fees  filing, conduct any intellectual property search or prepare any intellectual property schedule in a        and all other expenses or amounts payable under any Loan Document shall have been paid in full  jurisdiction other than its jurisdiction of organization; provided, however, that notwithstanding the      (other than contingent indemnification obligations not then due and payable), or any Letter of  foregoing, subject in all respects to the Agreed Security Principles, to the extent that any Loan          Credit shall remain outstanding (unless the Outstanding Amount of the L/C Obligations related                                         136                                                                                                       137  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






thereto has been Cash Collateralized or back-stopped by a letter of credit reasonably satisfactory         observed and such failure continues for 30 days after the date written notice thereof shall have  to the  applicable  L/C  Issuer  or  such  Letter  of  Credit  has  been  deemed  reissued  under  another been given to the Borrower by the Administrative Agent or the Required Lenders; or  agreement reasonably acceptable to the L/C Issuer), the Borrower will not:                                                                                                                   (d)   Representations  and  Warranties.   Any  representation,  warranty,  certification  or        SECTION 6.01       Financial Covenant.  Permit the Consolidated Net Senior Secured                   statement  of  fact  made  or  deemed made  by  or  on  behalf  of  the  Borrower  or  any  Restricted                                                               Financial Covenant                            Subsidiary herein (excluding (solely in respect of the Initial Funding Date and any other date prior  The provisions of this Section 6.01 are for the benefit of the Revolving Credit Lenders only and           to the Closing Date on which any extension of credit is made hereunder) those representations and  the Required Revolving Credit Lenders may amend, waive or otherwise modify this Section 6.01               warranties in Article III hereof the accuracy of which is not a condition to the Initial Funding Date  or the defined terms used for purposes of this Section 6.01 or waive any Default or Event of Default       set forth in Section 4.02 or the making of such extension of credit), or in any other Loan Document,  resulting from a breach of this Section 6.01 without the consent of any Lenders other than such            or  in  any document,  report,  certificate,  financial  statement  or  other  instrument  required  to  be  Required  Revolving  Credit  Lenders  in  accordance  with  the  provisions  of  Section  9.08.            delivered in  connection  herewith or therewith shall  be  incorrect  or  misleading  in  any  material  Notwithstanding anything to the contrary herein, when calculating the Consolidated Net Senior              respect when made or deemed made, except that such materiality qualifier shall not be applicable  Secured Leverage Ratio for the purposes of this Section 6.01, the events described in clauses (a)          to any representation or warranty that is already qualified by materi                                                                                                                       applicable Test Period shall not be given pro forma effect.                                                                                                                   (e)   Invalidity of Loan Documents.  (i) Any provision of any Loan Document, at any                                    ARTICLE VII                                                              time after its execution and delivery and for any reason other than as expressly permitted hereunder                                                                                                             or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect (other                               EVENTS OF DEFAULT                                                             than in accordance with its terms) and as a result thereof, a Material Adverse Effect would occur                                                                                                             or would reasonably be expected to occur; or any Loan Party or any other Person contests in        SECTION 7.01       Events of Default.  In case of the occurrence of any of the following             writing the validity or enforceability of any provision of any Loan Document; or any Loan Party  events (x) in the case of any of the events specified in Section 7.01(a), (d), (e), (f), (g), (h) or (i),  denies in writing that it has any or further liability or obligation under any provision of any Loan  from and after the Initial Funding Date and (y) in the case of any of the events specified in Section      Document (other than as a result of the discharge of such Loan Party in accordance with the terms  7.01(b),(c) or (j)                         Events of Default                                               of the applicable Loan Document), or purports  in writing to revoke, terminate or rescind  any                                                                                                             provision of any Loan Document;  (ii) any security interest under the Security Documents shall, at        (a)    Non-Payment.  Any Loan Party fails to pay when and as required to be paid herein,             any time, cease to be in full force and effect (other than in accordance with the terms of the relevant  whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof       Security  Document,  any  Intercreditor  Agreement  (on  and  after  the  execution  thereof),  any  or otherwise, (i) any amount of principal of any Loan (including, for the avoidance of doubt, the          Additional Intercreditor Agreement (on and after the execution thereof) and this Agreement) with  Early Termination Amount) or (ii) any interest on any Loan, or any fee due hereunder, within five          respect to Collateral having a Fair Market Value in excess of $10 million for any reason other than  Business Days of the due date or (iii) any other amount payable hereunder or under any other Loan          the satisfaction in full of all obligations under this Agreement or the release of any such security  Document, within five Business Days of the due date; or                                                    interest in accordance with the terms of this Agreement, any Intercreditor Agreement (on and after                                                                                                             the execution thereof), any Additional Intercreditor Agreement (on and after the execution thereof)        (b)    Specific Covenants.  Any Loan Party or any Restricted Subsidiary fails to perform             or the Security Documents or any such security interest created thereunder shall be declared invalid  or observe any term, covenant or agreement contained in any of Sections 5.03(a), 5.05(a), 5.11(a)          or unenforceable and the Borrower shall assert in writing that any such security interest is invalid  or 6.01 or Article IV of Annex I to this Agreement (other than Section 4.10 and 4.13 of Annex I);          or unenforceable and any such Default continues for 10 days; or (iii) any Guarantee of the Loans  provided that the Financial Covenant is subject to cure pursuant to Section 7.03; provided, further,       of a Guarantor that is a Significant Subsidiary or any group of Subsidiary Guarantors that taken                                                                                                             together would constitute a Significant Subsidiary ceases to be in full force and effect (other than  Default with respect to any Term Loans or Term Commitments unless and until the Required                   in accordance with the terms of such Facility Guaranty or this Agreement) or is declared invalid  Revolving Credit Lenders shall have terminated their Revolving Credit Commitments and declared             or  unenforceable  in  a  judicial  proceeding  or  any  Guarantor  denies  or  disaffirms  in  writing  its  all amounts outstanding thereunder to be due and payable pursuant to the last paragraph of this            obligations under its Facility Guaranty and any such Default continues for 10 days after the notice  Section 7.01; or                                                                                           specified in this Agreement; or         (c)    Other Defaults.  Any Loan Party or any Restricted Subsidiary fails to perform or                    (f)   Cross-Default.  (i) Any Loan Party or Restricted Subsidiary (A) fails to make any  observe (i) any term, covenant or agreement set forth in Section 5.14 of this Agreement and such           payment  when  due  (regardless  of  amount  and  whether  by  scheduled  maturity,  required  failure continues for 5 Business Days or (ii) any other term, covenant or agreement (not specified         prepayment,  acceleration,  demand,  or  otherwise)  in  respect  of  any  Material  Indebtedness  in Sections 7.01(a) or (b) above) contained in any Loan Document on its part to be performed or            (including undrawn committed or available amounts and including amounts owing to all creditors                                          138                                                                                                       139  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






under any combined or syndicated credit arrangement) prior to the expiration of any grace period           has not denied coverage), which judgments are not paid, discharged or stayed for a period of 60  provided in such Indebtedness, or (B) fails to observe or perform any other agreement or condition         days after the judgment becomes final; or  relating  to  any  such  Material  Indebtedness  or  contained  in  any  instrument  or  agreement  evidencing, securing or relating thereto, or any other event occurs, the effect of which default or              (i)   Change of Control.  There occurs a Change of Control; or  other event is to cause, or to permit the holder or holders of such Material Indebtedness or the  beneficiary or beneficiaries of any Guarantee thereof (or a trustee or agent on behalf of such holder            (j)   Employee Benefit Plans.  (i) There shall occur one or more ERISA Events which  or holders or beneficiary or beneficiaries) to cause, with or without the giving of notice, lapse of       individually or in the aggregate results in or would reasonably be expected to result in a Material  time  or  both,  such  Indebtedness  to  be  demanded,  accelerated  or  to  become  due  or  to  be       Adverse Effect; or (ii) there exists any fact or circumstance that would reasonably be expected to  repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,        result in the imposition of a Lien or security interest under Section 430(k) of the Code or under  prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such              ERISA;  Guarantee to become payable or cash collateral in respect thereof to be demanded; provided that  this clause (B) shall not apply to secured Indebtedness that becomes due as a result of the voluntary            then, and in every such event (other than an event with respect to the Borrower described  sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is         in clause (g)), and at any time thereafter during the continuance of such event, the Administrative  permitted hereunder; provided, further, that the failure referred to in clause (B) is unremedied and       Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take any  is not waived by the holders of such Indebtedness prior to any termination of the Commitments or           or  all  of  the  following  actions,  at  the  same  or  different  times:   (i)  terminate  forthwith  the  acceleration of such Indebtedness or of the Loans pursuant to this Section 7.01 or (ii) there occurs       Commitments and any obligation of the L/C Issuers to make L/C Credit Extensions; (ii) declare  under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting             the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the  from (A) any event of default under such Swap Contract as to which a Loan Party or any Subsidiary          principal of the Loans so declared to be due and payable, together with accrued interest thereon  thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event            and  any unpaid accrued fees, other amounts payable and all other liabilities  of the Borrower  (as defined in such Swap Contract) under such Swap Contract as to which a Loan Party or any                accrued hereunder and under any other Loan Document, shall become forthwith due and payable,  Subsidiary thereof is an Affected Party (as defined in such Swap Contract) and, in either event, the       without presentment, demand, protest or any other notice of any kind, all of which are hereby  Swap Termination Value owed by the Loan Party or such Subsidiary as a result thereof is greater            expressly waived by the Borrower, anything contained herein or in any other Loan Document to  than $25 million; or                                                                                       the contrary notwithstanding; (iii) require that the Borrower Cash Collateralize the L/C Obligations                                                                                                             (in an amount equal to the then Outstanding Amount thereof); and in any event with respect to the        (g)    Bankruptcy.  In relation to the Borrower, a Guarantor or a Significant Subsidiary or          Borrower described in clause (g), the Commitments and any obligation of the L/C Issuers to make  any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary       L/C  Credit  Extensions  shall  automatically  terminate  and  the  principal  of  the  Loans  then  (i) any corporate action, legal proceedings or other procedure or step is taken in relation to:  (A) a     outstanding, together with accrued interest thereon and any unpaid accrued fees, other amounts  voluntary  case; (B)  the  entry of  an  order for relief against it  in  an involuntary  case;  (C)  the  payable  and  all  other  liabilities  of  the  Borrower  accrued  hereunder  and  under  any  other  Loan  appointment of a custodian of it or for a substantial part of its property; (D) general assignment for     Document, shall automatically become due and payable, without presentment, demand, protest or  the benefit of its creditors; or (E) admission in writing of its inability to pay its debts generally as   any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything  they become due; or (ii) a court of competent jurisdiction enters an order or decree under any             contained herein or in any other Loan Document to the contrary notwithstanding and the obligation  Bankruptcy Law that:  (A) is for relief against the Borrower, any Guarantor or any Significant             of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become  Subsidiary  or  any  group  of  Restricted  Subsidiaries  that,  taken  together,  would  constitute  a    effective; and (iv) the Administrative Agent and the Collateral Agent shall have the right to take  Significant  Subsidiary  in an involuntary  case;  (B)  appoints a  custodian  or administrator of the     all or any actions and exercise any remedies available under the Loan Documents or applicable  Borrower, any Guarantor or any Significant Subsidiary or any group of Restricted Subsidiaries              law or in equity.  that, taken  together, would constitute a  Significant Subsidiary  or for a  substantial part of the  property of the Borrower, any Guarantor or any Significant Subsidiary or any group of Restricted                 Notwithstanding  anything  to  the  contrary,  if  the  only  Events  of  Default  then  having  Subsidiaries  that,  taken  together,  would  constitute  a  Significant  Subsidiary;  or  (C)  orders  the occurred  and  continuing  are  pursuant  to  a  failure  to  observe  the  Financial  Covenant,  the  liquidation or winding up of the Borrower, any Guarantor or any Significant Subsidiary or any              Administrative Agent shall only take the actions set forth in this Section 7.01 at the request of the  group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary,          Required Revolving Credit Lenders (as opposed to Required Lenders).  and the order or decree remains unstayed and in effect for 60 consecutive days; or                                                                                                                   SECTION 7.02      Application of Funds.  After the exercise of remedies provided for        (h)    Judgments.  Failure by the Borrower, a Guarantor or any Significant Subsidiary or             in this Article VII (or after the Loans have automatically become immediately due and payable or  any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary       the L/C Obligations have automatically been required to be Cash Collateralized as set forth in this  to  pay  final  judgments  aggregating  in  excess  of  $25  million  (to  the  extent  not  covered  by   Article VII), any amounts received on account of the Obligations shall (subject to any Intercreditor  independent third-party insurance as to which the insurer has been notified of such judgment and           Agreement (on and after the execution thereof)) be applied by the Administrative Agent in the                                                                                                             following order:                                         140                                                                                                       141  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






             first, to payment of that portion of the Obligations constituting fees, indemnities,                  for the applicable fiscal quarter; provided that (A) such amounts to be designated are        expenses and other amounts (including fees, charges and disbursements of counsel to the                      actually  received  by  the  Borrower  on  or  after  the  first  day  of  such  applicable  fiscal        Administrative  Agent  and  amounts  payable  under  Section  2.20)  payable  to  the                        quarter and on or prior to the tenth (10th) Business Day after the date on which financial        Administrative Agent or the Collateral Agent, in their respective capacities as such;                        statements are required to be delivered with respect to such applicable fiscal quarter (the                                                                                                                      Cure  Expiration  Date (B)  such  amounts  do  not  exceed  the  aggregate  amount               second,  to  payment  of  that portion  of  the Obligations constituting  indemnities,                necessary to cure any Event of Default under the relevant Financial Covenant as of such        expenses, and other amounts (other than principal, interest and fees) payable to the Lenders                 date and (C) the Borrower shall have provided notice to the Administrative Agent on        (including  fees,  charges  and  disbursements  of  counsel  to  the  respective  Lenders  and               the date such amounts are designated as Cure Amount       amounts payable under Section 2.20), ratably among them in proportion to the amounts                         the extent any such notice is provided in advance of delivery of a Compliance Certificate        described in this clause second payable to them;                                                             for the applicable period, the amount of such net cash proceeds that is designated as the                                                                                                                     Cure Amount may be different than the amount necessary to cure any Event of Default               third, to payment of that portion of the Obligations constituting accrued and unpaid                  under  the  relevant  Financial  Covenant  and  may  be  modified,  as  necessary,  in  a        interest on the Loans, L/C Borrowings and other Obligations, and fees, ratably among the                     subsequent corrected notice delivered on or before the Cure Expiration Date (it being        Lenders in proportion to the respective amounts described in this clause third payable to                    understood that in any event the final designation of the Cure Amount shall continue to        them;                                                                                                        be subject to the requirements set forth in clauses (A) and (B) above)); provided, further,                                                                                                                     that the Cure Amount used to calculate Consolidated EBITDA for one fiscal quarter               fourth, to payment of that portion of the Obligations constituting unpaid principal                   shall be used and included when calculating Consolidated EBITDA for each Test Period        of  the  Loans  and  L/C  Borrowings  (including  to  Cash  Collateralize  that  portion  of  L/C            that includes such fiscal quarter.        Obligations  comprised  of  the  aggregate  undrawn  amount  of  Letters  of  Credit) and  any        breakage, termination or other payments under Treasury Services Agreements or Swap                         (b)   The parties hereby acknowledge that this Section 7.03 may not be relied on for        Contracts,  ratably  among  the  Secured  Parties  in  proportion  to  the  respective  amounts      purposes of calculating any financial ratios other than for determining actual compliance with        described in this clause fourth held by them;                                                        Article VI (and not pro forma compliance with Article VI that is required by any other provision                                                                                                             of this Agreement) and shall not result in any adjustment to any amounts (including the amount of               fifth, to  payment of all  other Obligations ratably  among the Secured Parties in            Indebtedness) or increase in cash (and shall not be included for purposes of determining pricing,        proportion to the respective amounts described in this clause fifth held by them; and                mandatory prepayments and the availability or amount permitted pursuant to any covenant under                                                                                                             Article IV of Annex I) with respect to the quarter with respect to which such Cure Amount was               last, the balance, if any, after all of the Obligations have been indefeasibly paid in                                                                                                             made other than the amount of the Consolidated EBITDA referred to in the immediately preceding        full, to the Loan Parties or as otherwise required by Law.                                                                                                             sentence.        Subject to Section 2.26(g), amounts used to Cash Collateralize the aggregate undrawn                                                                                                                   (c)   In furtherance of clause (a) above, (i) upon actual receipt and designation of the  amount of Letters of Credit pursuant to clause fourth above shall be applied to satisfy drawings                                                                                                             Cure Amount by the Borrower, the relevant Financial Covenant shall be deemed satisfied and  under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral                                                                                                             complied with as of the end of the relevant fiscal quarter with the same effect as though there had  after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be                                                                                                             been no failure to comply with the relevant Financial Covenant and any Event of Default under  applied to the other Obligations, if any, in the order set forth above and, if no Obligations remain                                                                                                             the relevant Financial Covenant  shall be deemed not to have occurred for purposes of the Loan  outstanding, to the Borrower.                                                                                                             Documents, and (ii) upon delivery to the Administrative Agent prior to the Cure Expiration Date        SECTION 7.03                           Cure.   Notwithstanding  anything  to  the                    of a notice from the Borrower stating its good faith intention to exercise its right set forth in this  contrary contained in Section 7.01 or Section 7.02:                                                        Section 7.03, neither the Administrative Agent on or after the last day of the applicable quarter nor                                                                                                             any  Lender  may  exercise  any  rights  or remedies  under  Section  7.02 (or  under  any  other  Loan        (a)    For the purpose of determining whether an Event of Default under a Financial                  Document) on the basis of any actual or purported Event of Default under the relevant Financial  Covenant has occurred, the Borrower may on one or more occasions:                                          Covenant (and any other Default as a result thereof) until and unless the Cure Expiration Date has                                                                                                             occurred without the Cure Amount having been received and designated.                 (i)   designate any portion of the net cash proceeds from a sale or issuance of           Capital Stock, other than any Disqualified Stock of the Borrower or any contribution to                 (d)   (i) In each period of four consecutive fiscal quarters, there shall be at least two (2)           the common capital of the Borrower (or from any other contribution to capital or sale or          fiscal quarters in which no cure right set forth in this Section 7.03 is exercised and (ii) there shall           issuance  of  any  other  Capital  Stock  on  terms  reasonably  satisfactory  to  the            be no pro forma reduction in Indebtedness (directly or by way of netting) with the Cure Amount           Administrative Agent) (th Cure Amount                                        142                                                                                                       143  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






for  determining  compliance  with  the  applicable  Financial  Covenant  for  the  fiscal  quarter  with  in Section 12  of the Facility Guaranty, or with respect to which Required Lenders (or such other  respect to which such Cure Amount was made.                                                                Lenders as may be required to give such consent under Section 9.08) have otherwise consented.         (e)    There can be no more than five (5) fiscal quarters in which the cure rights set forth               (c)   The  Person  serving  as  the  Administrative  Agent  and/or  the  Collateral  Agent  in this Section 7.03 are exercised during the term of the Initial Revolving Credit Commitments.            hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender         SECTION 7.04       Withdrawal Event.   Notwithstanding  any  other  term  of  the Loan               shall, unless otherwise expressly indicated or unless the context otherwise requires, include the  Documents,  no  Withdrawal  Event  shall  (or  shall  be  deemed  to)  constitute  a  breach  of  any      Person serving as an Agent hereunder in its individual capacity.  Such Person and its Affiliates  representation and warranty, covenant or undertaking in the relevant Loan Document or result (by           may accept deposits from, lend money to, own securities of, act as the financial advisor or in any  itself) in the occurrence of an Event of Default or a Default and shall be expressly permitted under       other advisory capacity for, and generally engage in any kind of business with the Borrower or any  the terms of this Agreement.                                                                               Subsidiary or other Affiliate thereof (subject to securities law and other requirements of applicable                                                                                                             law) as if it were not an Agent hereunder and without any duty to account therefor to the Lenders.                                     ARTICLE VIII                                                             The Borrower agrees to pay to the Administrative Agent all fees and expenses in accordance with                                                                                                             any separate agreement between the Borrower and the Administrative Agent.                        THE ADMINISTRATIVE AGENT; ETC.                                                                                                                   (d)   Neither Agent shall have any duties or obligations except those expressly set forth        (a)    Each  Lender  and  the  other  Secured  Parties  hereby  irrevocably  designates  and         herein and in the Loan Documents, and its duties hereunder and thereunder shall be administrative  appoints the Administrative Agent and the Collateral Agent as its agent hereunder and under the            in nature.  Without limiting the generality of the foregoing, (i) neither Agent shall be subject to  other  Loan  Documents.   Each  Lender  hereby  authorizes  the  Administrative  Agent  and  the           any fiduciary  or other implied  duties,  regardless of whether  a  Default or Event of Default has  Collateral Agent (for purposes of this Article VIII, the Administrative Agent and the Collateral           occurred and is continuing, (ii) neither Agent shall have any duty to take any discretionary action                                    Agents             tions on its behalf and to exercise                   or  exercise  any  discretionary  powers,  except  discretionary  rights  and  powers  expressly  such  powers  and perform  such  duties as  are delegated  to  such  Agent  by  the terms  hereof  and     contemplated hereby that such Agent is instructed in writing to exercise by the Required Lenders  thereof, together with such other actions and powers as are reasonably incidental thereto.  The            (or such other number or percentage of the Lenders as shall be necessary under the circumstances  provisions of this Article VIII (except for paragraphs (f) and (g)) are solely for the benefit of the      as provided for herein or in the other Loan Documents); provided that neither Agent shall be  Agents and the Lenders, and neither the Borrower, nor any other Loan Party shall have rights as a          required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent  third-party beneficiary of any of such provisions.  It is understood and agreed that the use of the        to liability or that is contrary to any Loan Document or applicable law and (iii) except as expressly                                                                                                             set forth herein and in the other Loan Documents, neither Agent shall have any duty to disclose,  the  Administrative  Agent  or  Collateral  Agent,  as  applicable,  is  not  intended  to  connote  any   nor shall it be liable for the failure to disclose, any information relating to the Borrower or any of  fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable        the Subsidiaries that is communicated to or obtained by the Person serving as the Administrative  law.  Instead such term is used as a matter of market custom, and is intended to create or reflect         Agent and/or the Collateral Agent or any of its Affiliates in any capacity.  Without limiting the  only an administrative relationship between contracting parties.  Without limiting the generality          foregoing, neither Agent shall be liable for any action taken or not taken by it in accordance with  of the foregoing, the Agents are hereby expressly authorized to negotiate, enforce or settle any           any Intercreditor Agreement.  Neither Agent (nor any of their respective Related Parties) shall be  claim, action or proceeding affecting the Lenders in their capacity as such, at the direction of the       liable for any action taken or not taken by it with the consent or at the request of the Required  Required Lenders, which negotiation, enforcement or settlement will be binding upon each Lender.           Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent                                                                                                             shall believe in good faith shall be necessary, under the circumstances as provided in Article VII        (b)    Each  Secured  Party  hereby  further  authorizes  the  Administrative  Agent  or             or Section 9.08), or for any action lawfully taken or omitted to be taken by such Agent or otherwise  Collateral Agent, as applicable, on behalf of and for the benefit of the Secured Parties, to be the        hereunder or under any Loan Document in the absence of its own gross negligence or willful  agent for and representative of the Secured Parties with respect to the Collateral, the Security           misconduct as determined by a court of competent jurisdiction by a final non-appealable judgment.   Documents, any Intercreditor Agreement and any Additional Intercreditor Agreement and to enter             Neither Agent (nor any of their respective Related Parties) shall be deemed to have knowledge of  into the same at any time and from time to time.  Subject to Section 9.08, Section 9.20 or Section         any Default or Event of Default unless and until written notice thereof is actually received by an  12 of the Facility Guaranty (as applicable) without further written consent or authorization from          office  of  such  Agent  directly  responsible  for  the  administration  of  this  Agreement  from  the  any  Lender,  the  Administrative  Agent  or  Collateral  Agent,  as  applicable,  may  execute  any       Borrower or a Lender and stating that such notice is a notice of default.  Neither Agent shall be  documents or instruments necessary to (i) release any Lien encumbering any item of Collateral in           responsible  for  or  have  any  duty  to  ascertain  or  inquire  into  (A)  any  statement,  warranty  or  the circumstances set forth in Section 9.20, or with respect to which Required Lenders (or such            representation made in or in connection with this Agreement or any other Loan Document, (B) the  other  Lenders  as  may  be  required  to  give  such  consent  under  Section  9.08)  have  otherwise     contents  of  any  certificate,  report  or  other  document  delivered  thereunder  or  in  connection  consented and/or (ii) release any Guarantor from the Loan Guarantee in the circumstances set forth         therewith, (C) the performance or observance of any of the covenants, agreements or other terms                                         144                                                                                                       145  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






or conditions set forth in any Loan Document or the occurrence of any Default or Event of Default,         selected by it, and shall not be liable for any action taken or not taken by it in accordance with the  (D) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other           advice of any such counsel, accountants or experts.  agreement, instrument or document, (E) the satisfaction of any condition set forth in Article IV or  elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be                  (f)   Each Agent may perform any and all its duties and exercise its rights and powers  delivered to such Agent or (F) the perfection or priority of any security interest created or purported    hereunder  or  under  any  other  Loan  Document  or  any  other  instrument  or  agreements  referred  to be created under the Security Documents.  The Agents shall have the right to request instructions       herein or therein by or through any one or more sub-agents appointed by it provided, however, that  from  the Required  Lenders  at any time;  which, in the  case  of the Collateral Agent,  shall be         solely in the case where an Agent no longer serves as the applicable withholding agent, if a sub- determined  by,  and  communicated  by,  the  Administrative  Agent.   If  any  Agent  shall  request      agent has been appointed to serve as withholding agent, any such sub-agent that such Agent may  instructions from the Required Lenders with respect to any act or action (including failure to act)  in connection with this Agreement or any other Loan Document, such Agent shall be entitled to              of Treasury Regulations Section 1.1441-1 or a non-U.S. Affiliate of any such entity that has agreed  refrain  from  such  act  or  taking  such  action  unless  and  until  such  Agent  shall  have  received  instructions from the Required Lenders; and such Agent shall not incur liability to any Lender by          1.1441-1  for  all  payments  under  the  Loan  Documents  (it  being  understood  and  agreed,  for  reason of so refraining.  Without limiting the foregoing, no Lender shall have any right of action         avoidance of doubt and without limiting the generality of this Section, that the Agent may perform  whatsoever against any Agent or any of its Related Parties as a result of such Agent or such other         any and all of its duties and exercise its rights and powers hereunder and thereunder, by or through  person acting or refraining from acting hereunder or under any other Loan Document in accordance           one of more of its Affiliates).  Each Agent and any such sub-agent may perform any and all its  with the instructions of the Required Lenders.  No Agent shall be under any obligation to any              duties and exercise its rights and powers by or through their respective Related Parties.  The  Lender to ascertain or to inquire as to the observance or performance of any of the agreements             exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the  contained in, or conditions of, this Agreement or any other Loan Documents, or to inspect the              Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities  properties, books or records of any Loan Party.  The Collateral Agent shall not be under any               in connection with the syndication of the Term Facility as well as activities as Agent.  Neither  obligation to the Administrative Agent or any Lender to ascertain or to inquire as to the observance       Agent shall be responsible for the negligence or misconduct of any sub-agents except to the extent  or performance of any of the agreements contained in, or conditions of, this Agreement or any              that a court of competent jurisdiction determines in a final and non-appealable judgment that such  other  Loan  Documents,  or  to  inspect  the  properties,  books  or  records  of  any  Loan  Party.      Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.  Notwithstanding  anything  else  to  the  contrary  herein,  whenever  reference  is  made  in  this  Agreement  or  any  other  Loan  Document  to  any  discretionary  action  by,  consent,  designation,           (g)   Each Agent may resign at any time by notifying the Lenders and the Borrower.   specification, requirement or approval of, notice, request or other communication from, or other           Upon any such resignation, the Required Lenders shall have the right, with the consent of the  direction given or action to be undertaken or to  be (or not to be) suffered or omitted by the             Borrower (prior to the occurrence of a Specified Event of Default), to appoint a successor Agent  Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of         (other  than  a  Disqualified  Person)  who  shall  satisfy  the  requirements  of  the  next  succeeding  satisfaction, reasonable satisfaction or other exercise of discretion, rights or remedies to be made       sentence in the case of an Administrative Agent.  If no successor shall have been so appointed by  (or not to be made) by the Collateral Agent, it is understood that in all cases the Collateral Agent       the Required Lenders and shall have accepted such appointment within 60 days after the retiring  shall be fully justified in failing or refusing to take any such action under this Agreement if it shall   Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint  not have received such written instruction, advice or concurrence of the Administrative Agent, as          a successor Agent which, in the case of the Administrative Agent, shall be (i) a financial institution  it deems appropriate.  This provision is intended solely for the benefit of the Collateral Agent and       with an office in New York, New York, or an Affiliate of any such financial institution and (ii) a  its successors and permitted assigns and is not intended to and will not entitle the other parties  hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.        1.1441-1  or  a  non-                                                          g                                                                                                                                                                     -1 for all payments under the        (e)    Each Agent shall be entitled to rely upon, and shall not incur any liability for relying      Loan Documents.  If the Person serving as the Administrative Agent is a Defaulting Lender, the  upon, any notice, request, certificate, consent, statement, instrument, document or other writing          Required Lenders may, to the extent permitted by applicable law, by notice in writing to the  (including  any  electronic  message,  Internet  or  intranet  website  posting  or  other  distribution)  Borrower  and  such  Person,  remove  such  Person  as  the  Administrative  Agent,  and  appoint  a  believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper        successor Agent which shall satisfy the requirements in the immediately preceding sentence, with  Person.  Each  Agent  may  also  rely upon  any statement  made  to  it  orally  or  by  telephone  and    the consent of the Borrower so long as no Specified Event of Default is continuing.  If no successor  believed by it to have been made by the proper Person, and shall not incur any liability for relying       Agent has been appointed pursuant to the immediately preceding sentence by the 60th day after the  thereon.  In determining compliance with any condition hereunder to the making of a Loan that by           date such notice of resignation or removal was given by such Agent, the Borrower or the Required  its terms must be fulfilled to the satisfaction of a Lender, each Agent may presume that such              Le condition  is  satisfactory  to  such  Lender  unless  such  Agent  shall  have  received  notice  to  the from its duties and obligations hereunder) and the Required Lenders shall thereafter perform all  contrary from such Lender prior to the making of such Loan.  Each Agent may consult with legal             the duties of such Agent hereunder and/or under any other Loan Document until such time, if any,  counsel  (who  may  be  counsel  for  the  Borrower),  independent  accountants  and  other  experts       as the Required Lenders appoint a successor Agent with the consent of the Borrower (prior to the                                         146                                                                                                       147  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






occurrence of a Specified Event of Default).  Upon the acceptance of its appointment as Agent              make such payments to such Agent and, in the event that such Agent shall consent to the making  hereunder by a successor Agent, such successor Agent shall succeed to and become vested with               of such payments directly to the Lenders, to pay to such Agent any amount due for the reasonable  all the rights, powers, privileges and duties of the retiring Agent, and the retiring Administrative       compensation, expenses, disbursements and advances of such Agent and its agents and counsel,  Agent shall be discharged from its duties and obligations hereunder (if not already discharged             and any other amounts due such Agent under Section 9.05.  therefrom as provided above).  The fees payable by the Borrower to a successor Agent shall be the  same as those payable to its predecessor unless otherwise agreed between the Borrower and such                   (k)   To  the  extent  required  by  any  applicable  law,  the  Administrative  Agent  may                                                              removal  hereunder,  the                       withhold from any payment to any Lender an amount equivalent to any applicable withholding  provisions of this Article VIII and Section 9.05 shall continue in effect for the benefit of the retiring  Tax.   If  any  payment  has  been  made  to  any  Lender  by  the  Administrative  Agent  without  the  Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted      applicable withholding Tax being withheld from such payment and the Administrative Agent has  to be taken by any of them while acting as Agent.                                                          paid over the applicable withholding Tax to the IRS or any other Governmental Authority, or the                                                                                                             IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not        (h)    Each Lender acknowledges that it has, independently and without reliance upon the             properly  withhold  Tax  from  amounts  paid  to  or  for  the  account  of  any  Lender  because  the  Agents or any other Lender or any of their Related Parties and based on such documents and                 appropriate form was not delivered or was not properly executed or because such Lender failed to  information as it has deemed appropriate, made its own credit analysis and decision to enter into          notify the Administrative Agent of a change in circumstance which rendered the exemption from,  this Agreement.  Each Lender also acknowledges that it will, independently and without reliance            or reduction of, withholding Tax ineffective or for any other reason, such Lender shall indemnify  upon the Agents or any other Lender or any of their Related Parties and based on such documents            the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative  and information as it shall from time to time deem appropriate, continue to make its own decisions         Agent  as  Tax  or  otherwise,  including  any  penalties  or  interest  and  together  with  all  expenses  in taking or not taking action under or based upon this Agreement, any other Loan Document, any            (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred whether  related agreement or any document furnished hereunder or thereunder.                                       or  not  such  Tax  was  correctly  or  legally  imposed  or  asserted  by  the  relevant  Governmental                                                                                                             Authority.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and        (i)    Notwithstanding any other provision of this Agreement or any provision of any                 all amounts at any time owing to such Lender under this Agreement or any other Loan Document  other Loan Document, each Lead Arranger is named as such for recognition purposes only, and in             against any amount due the Administrative Agent under this Article VIII(k).  its respective capacities as such shall have no duties, responsibilities or liabilities with respect to  this  Agreement  or  any  other  Loan  Document;  it  being  understood  and  agreed  that  the  Lead            (l)   Any Agent shall be fully justified in failing or refusing to take any action hereunder  Arrangers shall be entitled to all indemnification and reimbursement rights in favor of the Agents         and under any other Loan Document (except actions expressly required to be taken by it hereunder  provided herein and in the other Loan Documents.  Without limitation of the foregoing, the Lead            or under the Loan Documents) unless it shall first be indemnified and secured to its satisfaction  Arrangers in their respective capacities as such shall not, by reason of this Agreement or any other       (including by way of pre-funding) by the Lenders pro rata against any and all liability, cost and  Loan Document, have any fiduciary relationship in respect of any Lender, Loan Party or any other           expense that it may incur by reason of taking or continuing to take any such action.  Neither Agent  Person.                                                                                                    shall be required to expend or risk any of its own funds or otherwise incur any liability, financial                                                                                                             or otherwise, in the performance of any of its duties hereunder or under any other Loan Document.        (j)    In case of the pendency of any proceeding under any Bankruptcy Law or any other  judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether                (m)   The agreements in this Article VIII shall survive the payment of all Obligations.  the principal of any Loan shall then be due and payable as herein expressed or by declaration or  otherwise and irrespective of whether the Administrative Agent shall have made any demand on                     (n)   Except as otherwise expressly set forth herein or in the Facility Guaranty or any  the  Borrower)  shall  be  entitled  and  empowered  (but  not  obligated)  by  intervention  in  such     Security Document, no Hedge Counterparty or Treasury Services Provider that obtains the benefits  proceeding or otherwise to instruct the Collateral Agent, in accordance with any  Intercreditor            of Section 7.02, the Facility Guaranty or any Collateral by virtue of the provisions hereof or of the  Agreement, or as otherwise provided thereby (i) to file and prove a claim for the whole amount of          Facility Guaranty or any Security Document shall have any right to notice of any action or to  the principal and interest owing and unpaid in respect of the Loans and all other Obligations that         consent to, direct or object to any action hereunder or under any other Loan Document or otherwise  are owing and unpaid and to file such other documents as may be necessary or advisable in order            in respect of the Collateral (including the release or impairment of any Collateral) other than, if a  to  have  the  claims  of  the  Lenders  and  the  Agents  (including  any  claim  for  the  reasonable    Lender at such time, in its capacity as a Lender and, in such case, only to the extent expressly  compensation, expenses, disbursements and advances of the Lenders and the Agents and their                 provided in the Loan Documents.  Notwithstanding any other provision of this Article VIII to the  respective agents and counsel and all other amounts due the Lenders and Agents under Section               contrary, the Administrative Agent shall not be required to verify the payment of, or that other  9.05) allowed in such judicial proceeding and  (ii) to collect and receive any monies or other             satisfactory  arrangements  have  been made  with  respect  to,  Obligations  arising  under  Treasury  property payable or deliverable on any such claims and to distribute the same and, in either case,         Services Agreements and Swap Contracts unless the Administrative Agent has received written  any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any      notice of such Obligations, together with such supporting documentation as the Administrative  such judicial proceeding is hereby authorized by each  Lender and each other Secured Party to              Agent may request, from the applicable Hedge Counterparty or Treasury Services Provider.  The                                          148                                                                                                       149  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






Hedge Counterparties and Treasury Services Providers hereby authorize the Administrative Agent                           (i)    if to the Borrower, to it at:  to  enter  into  any  Intercreditor  Agreement,  the  Additional  Intercreditor  Agreement  or  other                           Jean-Luc Berrebi c/o Ken Lefkowitz,   intercreditor  agreement  or  arrangement  permitted  under  this  Agreement  and  the  Hedge                                   Hughes Hubbard & Reed LLP,   Counterparty or Treasury Services Providers acknowledge that any such intercreditor agreement                                   One Battery Park Plaza, 12th floor,   is binding upon the Hedge Counterparty or Treasury Services Providers.                                                          New York, NY 10004, USA                                                                                                                                          (o)    None of the Lead Arrangers shall have any duties or responsibilities hereunder in                                  With a copy that shall not constitute notice to:  their respective capacities as such.                                                                                                                                                                                                                              Michael Kazakevich        (p)    In  the  event  that  the  Borrower  appoints  or  designates  any  Additional  Arranger                           Michael.Kazakevich@ropesgray.com  pursuant to Sections 2.22, 2.23 and 2.24, as applicable, unless otherwise set forth herein, (i) each                            +44-(0)7917-640894  and every right, power, privilege or duty expressed or intended by this Agreement or any of the                                 Ropes & Gray LLP,   other Loan Documents to be exercised by or vested in or conveyed to an arranger with respect to                                 60 Ludgate Hill, 3rd floor,   Incremental Loan Commitments or Refinancing Commitments, as applicable, shall be exercisable                                    London, EC4M 7AW  by and vest in such Additional Arranger, to the extent, and only to the extent, necessary to enable                               such  Additional  Arranger  to  exercise  such  rights,  powers  and  privileges  with  respect  to  the                        With a copy that shall not constitute notice to:  Incremental Loan Commitments or Refinancing Commitments, as applicable, and to perform such                                       duties with respect to such Incremental Loan Commitments or Refinancing Commitments, and                                        Alexandru Mocanu  every covenant and obligation contained in the Loan Documents and necessary to the exercise or                                  Alexandru.Mocanu@ropesgray.com  performance thereof by such Additional Arranger shall run to and be enforceable by either the                                   +44-(0)7546-458748  Administrative Agent or such Additional Arranger as specifically set forth therein, and (ii) the                                Ropes & Gray LLP,   provisions  of  this  Article  VIII  and  of  Section  9.05  (obligating  the  Borrowers  to  pay  the                          60 Ludgate Hill, 3rd floor,                                                                                                                                   London, EC4M 7AW  Agent and the Collateral Agent) that refer to the Administrative Agent and/or the Collateral Agent                                shall  also  inure  to  the  benefit  of  such  Additional  Arranger,  and  all  references  therein  to  the            (ii)   if  to  the  Administrative  Agent,  to  the  address,  facsimile  number,  Administrative  Agent  and/or  Collateral  Agent  shall  also  be  deemed  to  be  references  to  the             electronic mail address  or telephone number  specified  for  such Person  on  Schedule  Administrative Agent and/or Collateral Agent and/or such Additional Arranger, as the context may                   9.01(b); and  require.  Each Lender hereby irrevocably appoints any Additional Arranger to act on its behalf  hereunder  and  under  the  other  Loan Documents  pursuant  to Sections   2.22,  2.23  and  2.24,  as                   (iii)  if to a Lender, to such Lender at its address (or fax number) set forth on  applicable, and designates and authorizes such Additional Arranger to take such actions on its                     Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender shall  behalf under the provisions of this Agreement and each other Loan Document and to exercise such                    have become a party hereto or as otherwise communicated in writing from time to time  powers and perform such duties as are expressly delegated to such Additional Arranger by the                       by such Lender to the Borrower and the Administrative Agent.  terms of this Agreement or any other Loan Document, together with such actions and powers as  are reasonably incidental thereto.                                                                                       (iv)    If to the Collateral Agent, to the address, facsimile number, electronic                                                                                                                     mail  address  or telephone  number  set  forth  in  Section 6.01(b)  of the  Closing  Date                                     ARTICLE IX                                                                      Intercreditor Agreement.                                                                            MISCELLANEOUS                                                                    (b)   All notices and other communications given to any party hereto in accordance with                                                                                                             the provisions of this Agreement shall be deemed to have been given on the date of receipt if        SECTION 9.01       Notices;  Electronic  Communications.   (a)  Notices  and  other                  delivered by hand or overnight courier service or sent by fax or on the date five Business Days  communications provided for herein shall be in writing and shall be delivered by hand or overnight         after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed  courier service, mailed by certified or registered mail or sent by fax, as follows:                        (properly addressed) to such party as provided in this Section 9.01 or in accordance with the latest                                                                                                             unrevoked direction from such party given in accordance with this Section 9.01.                                                                                                                    (c)   As agreed to among the Borrower, the Administrative Agent and the applicable                                                                                                             Lenders from time to time, notices and other communications may also be delivered by e-mail to                                          150                                                                                                       151  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






the e-mail address of a representative of the applicable Person provided from time to time by such               (f)   The Borrower hereby acknowledges that (i) the Administrative Agent will make  Person.  Notices and other communications to the Lenders hereunder may be delivered or furnished           available to the Lenders materials and/or information provided by or on behalf of the Borrower  by  electronic  communication  (including  e-mail  and  Internet  or  intranet  websites)  pursuant  to                              Borrower  Materials                             ials  on  procedures approved by the Administrative Agent; provided that the foregoing shall not apply to                                                         Platform     (ii) certain of the Lenders  notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent                       -                                                            -public  that  it  is  incapable  of  receiving  notices  under  Article  II  by  electronic  communication.   The  information with respect to the Borrower, its Subsidiaries or their respective securities for purposes  Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other                                                            Public Lender communications to it hereunder by electronic communications pursuant to procedures approved                agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be  by  it;  provided  that  approval  of  such  procedures  may  be  limited  to  particular  notices  or  communications.                                                                                                                                                                          istrative Agent and the        (d)    Unless  the  Administrative  Agent  otherwise  prescribes,  (i)  notices  and  other          Lenders to treat such Borrower Materials as not containing any material non-public information  communications sent to an e-mail address shall be deemed received upon the intended re                     with respect to the Borrower, its Subsidiaries or their respective securities for purposes of United  receipt of the notice or communication, which shall be evidenced by an acknowledgment from the             States  federal  and  state  securities  laws  (provided,  however,  that  to  the  extent  the  Borrower                                                                       -mail or other                        Materials constitute Information, they shall be treated as set forth in Section 9.16); (y) all Borrower  written acknowledgement); provided that, if such notice or other communication is not sent during          Mater the normal business hours of the recipient, such notice or communication shall be deemed to have  been sent at the opening of business on the next Business Day for the recipient; provided, further,                                                                   y for posting on a portion  that  if  the                  -of-            -mail  containing  instructions  regarding                                                                              ctions,                         documents may be distributed to all Lenders (including Public Lenders) unless, solely with respect  and (ii)  notices or communications posted to an  Internet or intranet website shall be deemed             to the documents described in clauses (B) and (C) below, the Borrower advises the Administrative  received upon the deemed receipt by the intended recipient at its e-mail address as described in the       Agent in writing (including by e-mail) within a reasonable time prior to their intended distribution  foregoing clause (i) of notification that such notice or communication is available and identifying        that such material should only be distributed to Lenders other than Public Lenders (it being agreed  the website address therefor.                                                                              that the Borrower and its counsel shall have been given a reasonable opportunity to review such                                                                                                             documents  and  comply  with  applicable  securities  law  disclosure  obligations):   (A)  the  Loan        (e)    The  Borrower  hereby  agrees,  unless  directed  otherwise  by  the  Administrative          Documents; (B) administrative materials prepared by the Administrative Agent for prospective  Agent or unless the e-mail address referred to below has not been provided by the Administrative           Lenders; (C) term sheets and notification of changes in the terms of the Term Facility; and (D) the  Agent to the Borrower, that it will, or will cause its Subsidiaries to, provide to the Administrative      Audited Financial Statements and the financial statements and certificates furnished pursuant to  Agent  all  information,  documents  and  other  materials  that  it  is  obligated  to  furnish  to  the  Section 4.10 of Annex I.  Administrative Agent pursuant to the Loan Documents or to the Lenders under Article IV of Annex  I hereof or under Article V hereof, including all notices, requests, financial statements, financial             (g)   Each Public Lender agrees to cause at least one individual at or on behalf of such  and  other  reports,  certificates  and  other  information  materials,  but  excluding  any  such  communication that (i) is or relates to a Borrowing Request, a notice pursuant to Section 2.10,            on  the  content declaration  screen  of the  Platform  in  order to  enable  such  Public  Lender  or its  (ii) relates to the payment of any principal or other amount due under this Agreement prior to the         delegate,  in  accordance  with  scheduled  date  therefor,  (iii)  provides  notice  of  any  Default  or  Event  of  Default  under  this including United States Federal and state securities laws, to make reference to Communications  Agreement or any other Loan Document or (iv) is required to be delivered to satisfy any condition                                                                                         t  precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit         may contain material non-public information with respect to the Borrower or its securities for  hereunder  (all  such  non-excluded  communications  being  referred  to  herein  collectively  as         purposes of United States Federal or state securities laws.   Communications    by transmitting the Communications in an electronic/soft medium that is  properly identified in a format acceptable to the Administrative Agent to an e-mail address as                   (h)  directed by the Administrative Agent.  In addition, the Borrower agrees, and agrees to cause its           THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE  Subsidiaries,  to  continue  to  provide  the  Communications  to  the  Administrative  Agent  or  the     ACCURACY OR COMPLETENESS OF THE  COMMUNICATIONS  OR THE ADEQUACY  Lenders, as the case may be, in the manner specified in the Loan Documents but only to the extent          OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR  requested by the Administrative Agent.                                                                     OMISSIONS IN THE COMMUNICATIONS.  NO WARRANTY OF ANY KIND, EXPRESS,                                                                                                             IMPLIED  OR  STATUTORY,  INCLUDING  ANY  WARRANTY  OF  MERCHANTABILITY,                                         152                                                                                                       153  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






FITNESS  FOR  A  PARTICULAR  PURPOSE,  NON-INFRINGEMENT  OF  THIRD  PARTY                                  the other Loan Parties, the Administrative Agent, the Collateral Agent and each Person who is a  RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE                                        Lender on the Effective Date.  ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH  THE  COMMUNICATIONS  OR  THE  PLATFORM.   IN  NO  EVENT  SHALL  THE                                              SECTION 9.04      Successors and Assigns.  (a) Whenever in this Agreement any of  ADMINISTRATIVE AGENT, THE COLLATERAL AGENT OR ANY OF THEIR RELATED                                         the parties hereto is referred to, such reference shall be deemed to include the permitted successors  PARTIES HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER OR ANY OTHER                                      and assigns of such party; and all covenants, promises and agreements by or on behalf of the  PERSON  FOR  DAMAGES  OF  ANY  KIND,  WHETHER  OR  NOT  BASED  ON  STRICT                                  Borrower, the other Loan Parties, the Administrative Agent, the Collateral Agent or the Lenders  LIABILITY  AND  INCLUDING  DIRECT  OR  INDIRECT,  SPECIAL,  INCIDENTAL  OR                                 that  are  contained  in  this  Agreement  shall  bind  and  inure  to  the  benefit  of  their  respective  CONSEQUENTIAL  DAMAGES,  LOSSES  OR  EXPENSES  (WHETHER  IN  TORT,                                         successors and assigns.  CONTRACT  OR  OTHERWISE)  ARISING  OUT  OF                                                                                                                   (a)   Each Lender may assign to one or more Eligible Assignees all or a portion of its  INTERNET,  EXCEPT  TO  THE  EXTENT  THE  LIABILITY  OF  ANY  SUCH  PERSON  IS                              interests, rights and obligations under this Agreement (including all or a portion of its Commitment  FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE                                       and the Loans (including for purposes of this Section 9.04(b), participations in L/C Obligations  RESULTED PRIMARILY FROM SUCH P                                                                             and  in  Swing  Line  Loans)  at  the  time  owing  to  it),  with  the  prior  written  consent  of  the  MISCONDUCT.                                                                                                Administrative Agent, each applicable L/C Issuer at the time of such assignment and each Swing                                                                                                             Line  Lender  (not  to  be  unreasonably  withheld  or  delayed)  and  the  Borrower  (not  to  be        (i)    The Administrative Agent agrees that the receipt of the Communications by the                 unreasonably withheld or delayed); provided, however, that (i) the consent of the Borrower shall  Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the      not be required to any assignment made (x) to a Lender, an Affiliate of a Lender or a Related Fund,  Communications to the Administrative Agent for purposes of the Loan Documents.  Each Lender                (y) in connection with the initial syndication of the Term Facility to Persons identified in writing  agrees  that  receipt  of  notice  to  it  (as  provided  in  the  next  sentence)  specifying  that  the  by the Lead Arrangers to the Borrower during the initial syndication of the Term  Facility or  Communications  have  been  posted  to  the  Platform  shall  constitute  effective  delivery  of  the     (z) after the occurrence and during the continuance of any Specified Event of Default (provided,  Communications to such Lender for purposes of the Loan Documents.  Each Lender agrees to                   further, that the Borrower shall be deemed to have consented to any such assignment unless it shall  notify the Administrative Agent in writing (including by electronic communication) from time to            object thereto by written notice to the Administrative Agent within ten Business Days after having                       -mail address to which the foregoing notice may be sent by electronic                 received notice thereof), (ii) the consent of the Administrative Agent shall not be required to any  transmission and that the foregoing notice may be sent to such e-mail address.                             assignment (x) in connection with the initial syndication of the Term Facility, (y) made by an                                                                                                             assigning Lender to a Related Fund of such Lender or (z) of an amount less than $1,000,000, by        SECTION 9.02       Survival of Agreement.  Nothing herein shall prejudice the right of               an assigning Lender to a Related Fund of such Lender, (iii) the consent of the applicable L/C  the Administrative Agent or any Lender to give any notice or other communication pursuant to               Issuers or the Swing Line Lenders shall be not required for any assignment of a Term Loan or a  any  Loan  Document  in  any other  manner  specified in  such  Loan  Document.   All  covenants,          Term Commitment; (iv) the amount of the Commitment or Loans of the assigning Lender subject  agreements, representations and warranties made by the Borrower herein and in the certificates or          to each such assignment (determined as of the date the Assignment and Acceptance with respect  other instruments prepared or delivered in connection with or pursuant to this Agreement or any            to such assignment is delivered to the Administrative Agent) shall be in an integral multiple of,  other Loan Document shall be considered to have been relied upon by the Lenders and shall survive          and not less than (unless otherwise consented to by the Administrative Agent), $1,000,000 (or, if  the making by the Lenders of the Loans, regardless of any investigation made by the Lenders or  on their behalf, and shall continue in full force and effect as long as the principal of or any accrued    simultaneous  assignments  by  two  or  more  Related  Funds  shall  be  combined  for  purposes  of  interest on any Loan or any Fee or any other amount payable under this Agreement or any other              determining  whether  the  minimum  assignment  requirement  is  met,  (v)  the  parties  to  each  Loan  Document  is  outstanding  and  unpaid  and  so  long  as  the  Commitments  have  not  been         assignment  shall  (A)  execute  and  deliver  to  the  Administrative  Agent  an  Assignment  and  terminated.  The provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative and in full       Acceptance via an electronic settlement system acceptable to the Administrative Agent or (B) if  force and effect regardless of the expiration of the term of this Agreement, the consummation of           previously  agreed  with  the  Administrative  Agent,  manually  execute  and  deliver  to  the  the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the             Administrative  Agent  an  Assignment  and  Acceptance,  and,  in  each  case,  shall  pay  to  the  Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any          Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or  other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the            reduced, in whole or in part, in the sole discretion of the Administrative Agent); provided that only  Collateral Agent or any Lender.                                                                            one such fee shall be payable in the event of simultaneous assignments to or from two or more                                                                                                             Related Funds by a single Lender and no fee shall be payable for assignments among Related        SECTION 9.03       Binding Effect.  This Agreement shall become effective when the                   Funds  of  an  existing  Lender; (vi) the  assignee,  if  it shall not  be a  Lender, shall deliver  to  the  Administrative Agent shall have received executed counterparts hereof from each of the Borrower,           Administrative Agent an Administrative Questionnaire (in which the assignee shall designate one                                                                                                             or more credit contacts to whom all syndicate-level information (which may contain material non-                                        154                                                                                                       155  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






public information about the Loan Parties and their Related Parties or their respective securities)              (c)   The Administrative Agent, acting solely for this purpose as a non-fiduciary agent                                                                                                             of the Borrower, shall maintain at one of its offices in New York City a copy of each Assignment  compliance procedures and applicable laws, including Federal and state securities laws) and all            and Acceptance delivered to it and a register for the recordation of the names and addresses of the  applicable tax forms and (vii) no assignment of any Initial Term Loan Commitments (or Initial              Lenders, and the Commitments of, and principal amount of the Loans, Swing Line Loans and L/C  Term Loans) shall be effective prior to the Delayed Draw Funding Date (unless consented to by              Borrowings (and stated interest) owing to, each Lender pursuant to the terms hereof from time to  the Borrower).  Upon acceptance and recording pursuant to Section 9.04(e), from and after the                      Register effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be           Borrower, the Administrative Agent, the Collateral Agent and the Lenders shall treat each Person  a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have         whose name is recorded in the Register pursuant to the terms hereof as the owner of the amounts  the  rights  and  obligations  of  a  Lender  under  this  Agreement  and  (B)  the  assigning  Lender     owing to it under the Loan Documents as reflected in the Register for all purposes of the Loan  thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be             Documents, notwithstanding notice to the contrary.  The Register shall be available for inspection  released  from  its  obligations  under  this  Agreement  (and,  in  the  case  of  an  Assignment  and    by the Borrower, the Collateral Agent, any Lender (solely with respect to any entry relating to such   under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled       Participating Revolving Credit Commitments) and any Swing Line Lender (solely with respect to  to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any fees accrued for its account      any entry relating to Participating Revolving Credit Commitments), at any reasonable time and  and not yet paid).                                                                                         from time to time upon reasonable prior notice.         (b)    By executing and delivering an Assignment and Acceptance, the assigning Lender                      (d)   Upon its receipt of, and consent to, a duly completed Assignment and Acceptance  thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other             executed by an assigning Lender and an assignee, an Administrative Questionnaire completed in  and the other parties hereto as follows:  (i) such assigning Lender warrants that it is the legal and      respect of the assignee (unless the assignee shall already be a Lender hereunder), the processing  beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that       and recordation fee referred to in Section 9.04(b), if applicable, and the written consent of the  its Commitment and the outstanding balances of its Loans, in each case without giving effect to            Administrative Agent and, if required, the Borrower to such assignment and any applicable tax  assignments thereof which have not become effective, are as set forth in such Assignment and               forms, the Administrative Agent shall (i) accept such Assignment and Acceptance and (ii) record  Acceptance,  (ii)  except  as  set  forth  in  clause  (i)  above,  such  assigning  Lender  makes  no     the information contained therein in the Register.  Notwithstanding anything to the contrary in the  representation or warranty and assumes no responsibility with respect to any statements, warranties        Agreement to the contrary, no assignment shall be effective unless it has been recorded in the  or  representations  made  in  or  in  connection  with  this  Agreement,  or  the  execution,  legality,  Register as provided in this Section 9.04(e).  validity,  enforceability,  genuineness,  sufficiency  or  value  of  this  Agreement,  any  other  Loan  Document  or  any  other  instrument  or  document  furnished  pursuant  hereto,  or  the  financial             (e)   Each  Lender  may,  without  the  consent  of,  or  notice  to,  the  Borrower  or  the  condition of the Borrower or any Subsidiary or the performance or observance by the Borrower or            Administrative Agent, sell participations to one or more banks or other Persons (other than a  any Subsidiary of any of its obligations under this Agreement, any other Loan Document or any              Defaulting Lender, provided that the Administrative Agent has posted the name of such Defaulting  other  instrument  or  document  furnished  pursuant  hereto;  (iii)  such  assignee  represents  and                                           -Public  warrants that it  is an Eligible Assignee legally  authorized to enter into such Assignment and            portion  of  its  rights  and  obligations  under  this  Agreement  (including  all  or  a  portion  of  its  Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together            Commitment and the Loans owing to it); provided, however, that (i) no Lender shall, without the  with copies of the most recent financial statements referred to in Section 3.05(a) or delivered            written consent of the Borrower, sell participations in Loans or Commitments to any Disqualified  pursuant to Section 4.10 of Annex I and such other documents and information as it has deemed              Person, (ii)                                                            (iii) such  appropriate  to  make  its  own  credit  analysis  and  decision  to  enter  into  such  Assignment  and   Lender shall remain solely responsible to the other parties hereto for the performance of such  Acceptance; (v) such assignee will independently and without reliance upon the Administrative              obligations, (iv) the participating banks or other Persons shall be entitled to the benefit of the cost  Agent,  the  Collateral  Agent,  such  assigning  Lender  or  any  other  Lender  and  based  on  such     protection provisions contained in Sections 2.14, 2.16 and 2.20 to the same extent as if they were  documents and information as it shall deem appropriate at the time, continue to make its own credit        Lenders (but, with respect to any particular participant, to no greater extent than the Lender that  decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and             sold the participation to such participant unless a greater payment results from a Change in Law  authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its           occurring after such particular participant acquired the applicable participation or the sale of such  behalf and to exercise such powers under this Agreement as are delegated to the Administrative             participation was approved in writing by the  Borrower),  (v) the Borrower, the Administrative  Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as            Agent and the Lenders shall continue to deal solely and directly with such Lender in connection  are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance  with  their terms  all the  obligations which by the  terms of this Agreement are required to be           sole right  to enforce the  obligations of the Borrower relating to the  Loans and to approve any  performed by it as a Lender.                                                                               amendment, modification or waiver of any provision of this Agreement (other than amendments,                                                                                                             modifications  or  waivers  decreasing  any  fees  payable  to  such  participating  bank  or  Person                                         156                                                                                                       157  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






hereunder or the amount of principal of or the rate at which interest is payable on the Loans in           liable for any indemnity or similar payment obligation under this Agreement (all liability for which  which  such  participating  bank  or  Person  has  an  interest,  extending  any  scheduled  principal     shall remain with the Granting Lender).  In furtherance of the foregoing, each party hereto hereby  payment date or date fixed for the payment of interest on the Loans in which such participating            agrees (which agreement shall survive the termination of this Agreement) that, prior to the date  bank  or  Person  has  an  interest,  increasing  or  extending  the  Commitments  in  which  such         that is one year and one day after the payment in full of all outstanding commercial paper or other  participating bank or Person has an interest or releasing all or substantially all of the value of the     senior indebtedness of any SPV, it will not institute against, or join any other Person in instituting  Facility Guaranty or all or substantially all of the Collateral) and (vi) such Lender shall maintain a     against,  such  SPV  any  bankruptcy,  reorganization,  arrangement,  insolvency  or  liquidation  register on which it records the name and address of each participant and the principal amounts            proceedings under the laws of the United States or any State thereof.  In addition, notwithstanding                                                                                                             anything to the contrary contained in this Section 9.04, any SPV may (i) with notice to, but without  Commitments or other interests hereunder, which entries shall be conclusive absent manifest error          the prior written consent of, the Borrower and the Administrative Agent and without paying any       Participant Register                                                                                  processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender  any portion of such register to any Person except to the extent disclosure is necessary to establish       or to any financial institutions (consented to by the Borrower and Administrative Agent) providing  that the Loans, Commitments or other interests hereunder are in registered form for United States          liquidity  and/or  credit  support  to  or  for  the  account  of  such  SPV  to  support  the  funding  or  federal  income  tax  purposes  under  Treasury  Regulations  Section  5f.103-1(c),  or  is  otherwise     maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating  required thereunder.  To the extent permitted by law, each participating bank or other Person also         to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or  shall  be  entitled  to  the  benefits  of  Section  9.06  as  though  it  were  a  Lender,  provided  such credit or liquidity enhancement to such SPV.  If a Granting Lender grants an option to an SPV as  participating bank or other Person agrees to be subject to Section 2.18 as though it were a Lender.        described herein and such grant is not reflected in the Register, the Granting Lender shall maintain                                                                                                             a separate register on which it records the name and address of each SPV and the principal amounts        (f)    Any Lender may, in connection with any assignment or participation or proposed  assignment or participation pursuant to this Section 9.04, disclose to the assignee or participant or                                                                        SPV Register proposed assignee or participant any information relating to the Borrower furnished to such Lender         provided, further, that no Lender shall have any obligation to disclose any portion of such register  by  or  on  behalf  of  the  Borrower;  provided  that,  prior  to  any  such  disclosure  of  information to any Person except to the extent disclosure is necessary to establish that the Loans, Commitments  designated by the Borrower as confidential, each such assignee or participant or proposed assignee         or other interests hereunder are in registered form for United States federal income tax purposes  or participant shall execute an agreement with such Lender whereby such assignee or participant            under Treasury Regulations Section 5f.103-1(c) or is otherwise required thereunder.  shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential  information on terms no less restrictive than those applicable to the Lenders pursuant to Section                (i)   Neither the Borrower nor any Guarantor shall assign or delegate any of its rights or  9.16.                                                                                                      duties hereunder or any other Loan Document (other than as permitted by Article V of Annex I)                                                                                                             without the prior written consent of the Administrative Agent and each Lender, and any attempted        (g)    Any Lender may, without the consent of the Borrower or the Administrative Agent,              assignment without such consent shall be null and void.  at  any time pledge  or  assign  a security  interest  in  all  or any  portion  of  its rights  under  this  Agreement to secure obligations of such Lender, including any pledge or assignment to secure                     (j)   Notwithstanding anything to the contrary contained in this Section 9.04 or any other  obligations to a Fe                                    Section 9.04(b) shall not apply                     provision  of  this  Agreement,  so  long  as  no  Specified  Event  of  Default  has  occurred  and  is  to any such pledge or assignment of a security interest, provided that no such pledge or assignment        continuing or would result therefrom, each Lender shall have the right at any time to sell, assign  of a security interest shall release a Lender from any of its obligations hereunder or substitute any      or transfer all or a portion of its Loans or Commitments owing to it to the Borrower through  such pledgee or assignee for such Lender as a party hereto.                                                (x) Dutch auctions or other offers to purchase open to all Lenders on a pro rata basis consistent                                                                                                             with the procedures set forth in Section 2.12(c) or (y) notwithstanding any other provision in this        (h)    Notwithstanding  anything  to  the  contrary  contained  herein,  any  Lender  (a             Agreement, open market purchase on a non-pro rata basis, and the Borrower shall have the right   Granting Lender                                            SPV in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower,          Commitments in accordance with Section 2.21; provided that, in connection with assignments  the option to provide to the Borrower all or any part of any Loan that such Granting Lender would          pursuant to clause (y) above:  otherwise  be  obligated  to  make  to  the  Borrower  pursuant  to  this  Agreement;  provided  that  (i) nothing herein shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV                          (i)    the assigning Lender and the Borrower shall execute and deliver to the  elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the                 Administrative Agent an Affiliated Lender/Borrower Assignment and Acceptance;  Granting Lender shall be obligated to make such Loan pursuant to the terms hereof, and (iii) such  assignment  will  be reflected in  the  Participant  Register.   The  making  of  a  Loan  by  an  SPV                   (ii)   no proceeds from any Borrowing under any Revolving Credit Facilities  hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such                  may be used to make any such purchase or effect any such assignment or transfer; and  Loan were made by such Granting Lender.  Each party hereto hereby agrees that no SPV shall be                                          158                                                                                                       159  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






               (iii) (A)  the  principal  amount  of  such  Loans,  along  with  all  accrued  and               funding, with the consent of the Borrower and the Administrative Agent, the applicable           unpaid interest thereon, sold, assigned or transferred to the Borrower shall be deemed                  Pro Rata Share of Loans previously requested but not funded by the Defaulting Lender, to           automatically cancelled and extinguished on the date of such sale, assignment or transfer               each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay           and (B) the aggregate outstanding principal amount of Loans of the remaining Lenders                    and  satisfy in  full all payment liabilities then owed  by such Defaulting Lender to the           shall reflect such cancellation and extinguishing of the Loans then held by the Borrower.               Administrative  Agent  or  any  Lender  hereunder  (and  interest  accrued  thereon)  and                                                                                                                   (y) acquire (and fund as appropriate) its full Pro Rata Share of all Loans.  Notwithstanding        (k)    Any Lender may at any time, assign all or a portion of its rights and obligations                   the foregoing, in the event that any assignment of rights and obligations of any Defaulting  with  respect  to  Loans  under  this  Agreement  to  a  Person  who  is  or  will  become,  after  such         Lender hereunder shall become effective under applicable Law without compliance with  assignment, an Affiliated Lender through (x) Dutch auctions or other offers to purchase open to                  the provisions of this paragraph, then the assignee of such interest shall be deemed to be a  all  Lenders  on  a pro  rata basis consistent with the procedures set forth in Section 2.12(c) or               Defaulting Lender for all purposes of this Agreement until such compliance occurs.  (y) open market purchase on a non-pro rata basis, in each case subject to the following limitations:                                                                                                                   (l)   In  case  of  assignment,  transfer  or  novation  by  a  Lender  to  a  new  lender  or  a                 (i)   the assigning Lender and the                                                          participant, of all or any part of its rights and obligations under this Agreement or any of the other           Loans  shall  execute  and  deliver  to  the  Administrative  Agent  an  Affiliated               Loan Documents, the Lenders and the new lender or participant shall agree that, for the purposes           Lender/Borrower Assignment and Acceptance;                                                        of Article 1278 and/or Article 1281 of the Luxembourg Civil Code (to the extent applicable), any                                                                                                             assignment,  amendment,  transfer  and/or  novation  of  any  kind  permitted  under,  and  made  in                 (ii)  Affiliated  Lenders  will  not  receive  information  provided  solely  to            accordance with the provisions of the Agreement or any agreement referred to herein to which a           Lenders by the Administrative Agent or any Lender and will not be permitted to attend             Luxembourg Loan Party is a party (including but not limited to any Security Document), any           or participate in conference calls or meetings attended solely by the Lenders and the             security created or guarantee given under the Agreement or in relation to the Agreement shall be           Administrative Agent, other than the right to receive notices of prepayments and other            preserved and continue in full force and effect to the benefit of the new lender or participant.           administrative notices in respect of its Loans or Commitments required to be delivered           to Lenders pursuant to Article II;                                                                      SECTION 9.05      Expenses;  Indemnity.   (a)  The  Borrower  agrees  to  pay  (i)  all                                                                                                             reasonable out-of-pocket expenses incurred by the Lead Arrangers, the Administrative Agent and                 (iii) the  aggregate  principal  amount  of  Loans  held  at  any  one  time  by            the Collateral Agent in connection with the syndication of the Term Facility and the preparation,           Affiliated Lenders shall not exceed 30% of the original principal amount of all Loans at          execution and delivery of this Agreement and the other Loan Documents (other than fees, charges                                                Affiliated Lender Cap                                        and  disbursements of any counsel to the  Lead Arrangers) and  (ii) all reasonable out-of-pocket           the extent any assignment to an Affiliated Lender would result in the aggregate principal         expenses incurred by the Administrative Agent and the Collateral Agent in connection with the           amount of all Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap,               administration  of  this  Agreement  and  the  other  Loan  Documents  or  in  connection  with  any           the assignment of such excess amount will be void ab initio.                                      amendments, modifications or waivers of the provisions hereof or thereof (whether or not the                                                                                                             transactions  hereby  or  thereby  contemplated  shall  be  consummated)  or  incurred  by  the  Lead               Notwithstanding anything to the contrary contained herein, any Affiliated Lender              Arrangers, the Administrative Agent, the Collateral Agent or any Lender in connection with the        that  has  purchased  Loans  pursuant  to  this  subsection  (l)  may,  in  its  sole  discretion,   enforcement or protection of its rights in connection with this Agreement  and the other  Loan        contribute, directly or indirectly, the principal amount of such Loans, plus all accrued and         Documents or in connection with the Loans made hereunder, including in case of this clause (ii)        unpaid interest thereon, to the Borrower for the purpose of cancelling and extinguished              the fees, charges and disbursements of one primary counsel for such Persons taken as a whole        such Loans.  Upon the date of such contribution, assignment or transfer, (x) the aggregate           (and, to the extent deemed reasonably necessary by the Administrative Agent in its good faith        outstanding principal amount of Loans shall reflect such cancellation and extinguishing of           discretion, one local counsel in each relevant jurisdiction to the Lead Arrangers, the Administrative        the Loans then held by the Borrower and (y) the Borrower shall promptly provide notice               Agent, the Collateral Agent and the Lenders, taken as a whole, and one special or regulatory        to the Administrative Agent of such contribution of such Loans, and the Administrative               counsel in each relevant specialty), and, solely in the case of a conflict of interest or a potential        Agent, upon receipt of such notice, shall reflect the cancellation of the applicable Loans in        conflict of interest, one additional primary counsel (and, to the extent deemed reasonably necessary        the Register.                                                                                        or advisable by the affected persons in  their  good faith discretion, one  local counsel in each                                                                                                             relevant jurisdiction and one special or regulatory counsel in each relevant specialty) to the affected               In  connection with any  assignment of  rights and  obligations of any Defaulting                                                                                                             persons, taken as a whole.        Lender hereunder, no such assignment shall be effective unless and until, in addition to the        other conditions thereto set forth herein, the parties to the assignment shall make such                   (a)   The Borrower agrees to indemnify the Lead Arrangers, the Administrative Agent,        additional payments to the Administrative Agent in an aggregate amount sufficient, upon              the Collateral Agent, each Lender and each Related Party of any of the foregoing Persons (each        distribution  thereof  as  appropriate  (which  may  be  outright  payment,  purchases  by  the                              Indemnitee                                          rom,        assignee of participations or subparticipations, or other compensating actions, including                                         160                                                                                                       161  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel        a result of, this Agreement, any other Loan Document or any agreement or instrument delivered  fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in         in connection herewith or therewith, the Transactions, any Loan or the use of the proceeds thereof;  any  way connected with, or as  a result of  (i) the syndication for the  Initial Term  Loans, the         provided that nothing contained in this sentence will limit the indemnity obligations of any Loan  execution,  delivery  or  administration  of  this  Agreement  or  any  other  Loan  Document or any       Party to the extent indirect, special, punitive or consequential damages are included in any third  agreement or instrument delivered herewith or therewith, the performance by the parties hereto or          party claim in connection with which such Indemnitee is entitled to indemnification hereunder.  thereto  of  their  respective  obligations  hereunder  or  thereunder  or  the  consummation  of  the  Transactions and the other transactions contemplated thereby (including the Term Facility and the                (d)   No  Indemnitee  seeking indemnification or reimbursement under this Agreement  syndication  thereof),  (ii)  the  use  of  the  proceeds  of  the  Loans,  (iii)  any  claim,  litigation,  investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a           conditioned), settle, compromise, consent to the entry of any judgment in or otherwise seek to  party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower,     terminate any claim, litigation, action, investigation or proceeding referred to herein; provided that  any other Loan Party or any of their respective Affiliates or equity holders) or (iv) any actual or        the foregoing indemnity will apply to any such settlement in the event that (i) the Borrower was  alleged presence or Release of Hazardous Materials on any property currently or formerly owned             offered the ability to assume the defense of the action that was the subject matter of such settlement  or operated by the Borrower or any of the Subsidiaries, or any Environmental Liability related in          and elected not to so assume or (ii) such settlement is entered into more than seventy-five (75)  any way to the Borrower or the Subsidiaries; provided that such indemnity shall not, as to any             days after receipt by the Borrower of a request by the applicable Indemnitee for reimbursement of  Indemnitee, be available (A) to the extent that such losses, claims, damages, liabilities or related       its legal or other expenses incurred in connection with such claim, litigation, action, investigation  expenses are determined by a court of competent jurisdiction by final and non-appealable judgment          or proceeding and the Borrower not having reimbursed such Indemnitee in accordance with such  to have resulted primarily from (1) the bad faith, gross negligence or willful misconduct of such          request prior to the date of such settlement (provided that the foregoing indemnity will not apply  Indemnitee, (2) disputes solely among Indemnitees (or their Related Persons) (other than claims            to  any  settlement  made  in  accordance  with  this  clause  (ii)  if  the  Borrower  is  disputing  such  against any Indemnitee (x) in its capacity or in fulfilling its role as agent or arranger or any similar   expenses in good faith in accordance with paragraph (b) of this Section 9.05), and the foregoing  role under the Credit Agreement or (y) arising  out of any act or omission on the part of the  Borrower or any of its Subsidiaries or Affiliates) or (B) in respect of legal fees or expenses of the      final judgment for the plaintiff against an Indemnitee in any such proceeding.  Indemnitees, other than the reasonable invoiced fees, expenses and charges of one primary counsel  for  all  Indemnitees  taken  as  a  whole  (and  to  the  extent  deemed  reasonably  necessary  by  the        (e)   Notwithstanding the foregoing, each Indemnitee (and its Related Persons) shall be  Administrative Agent in its good faith discretion, one local counsel in each relevant jurisdiction         obligated to refund and return promptly any and all amounts paid by the Loan Parties under Section  and one special or regulatory counsel in each relevant specialty), and solely in the case of a conflict    9.05(b) to such Indemnitee (or such Related Person) for any such fees, expenses or damages to the  of interest or a potential conflict of interest, one additional primary  counsel (and, to the extent       extent such Indemnitee (or such Related Person) is not entitled to payment of such amounts in  deemed reasonably necessary by the Administrative Agent in its good faith discretion, one local            accordance with the terms hereof, as determined by a final non-appealable judgment of a court of  counsel  in  each  relevant  jurisdiction  and  one  special  or  regulatory  counsel  in  each  relevant  competent jurisdiction.  specialty) to the affected Indemnitees, taken as a whole.  This Section 9.05(b) shall not apply with  respect to Taxes other than any Taxes that represent losses, claims, damages, etc.  arising from any             (f)   The provisions of this Section 9.05 shall remain operative and in full force and  non-Tax claim.  Payments under this Section shall be made by the Borrower to the Administrative            effect  regardless  of  the  expiration  of  the  term  of  this  Agreement,  the  consummation  of  the  Agent for the benefit of the relevant Indemnitee.                                                          transactions  contemplated  hereby,  the  repayment  of  any  of  the  Loans,  the  expiration  of  the                                                                                                             Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any        (b)    To the extent that the Borrower fails to pay any amount required to be paid by it to          other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the  any Agent (or Affiliate thereof) under Sections 9.05(a) or (b), each Lender severally agrees to pay        Collateral Agent or any Lender.  All amounts due under this Section 9.05 shall be payable on                                                    Share (determined as of the time that                    written demand therefor.  This Section 9.05 shall not apply with respect to Taxes other than Taxes  the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;                 that represent losses, claims or damages arising from any non-Tax claim.  provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related  expense, as the case may be, was incurred by or asserted against the Agent (or Affiliate thereof) in             SECTION 9.06      Right of Setoff.  If an Event of Default shall have occurred and be                                                                                                             continuing, each Lender is hereby authorized at any time and from time to time, except to the  upon its share of the sum of the outstanding Loans at the time.                                            extent prohibited by law, to set off and apply any and all deposits (general or special, time or                                                                                                             demand, provisional or final) at any time held and other indebtedness at any time owing by such        (c)    To the extent permitted by applicable law, no Loan Party shall assert, and hereby             Lender or its Affiliates to or for the credit or the account of the Borrower against any of and all the  waives, any claim against any Indemnitee, and no Indemnitee shall assert, and hereby waives, any           obligations  of  the  Borrower  now  or  hereafter  existing  under  this  Agreement  and  other  Loan  claim against any Loan Party, on any theory of liability, for special, indirect, consequential or          Documents held by such Lender, irrespective of whether or not such Lender shall have made any  punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as        demand under this Agreement or such other Loan Document and although such obligations may                                         162                                                                                                       163  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






be unmatured; provided that any Lender exercising such right of setoff shall promptly notify the           (v)  amend,  waive  or  otherwise  modify  any  term  or  provision  (including  the  availability  and  Administrative Agent thereof.  The rights of each Lender under this Section 9.06 are in addition           conditions to funding under Section 4.04 with respect to Initial Term Loan Commitments, Section  to other rights and remedies (including other rights of setoff) which such Lender may have.                2.22 with respect to Incremental Loan Commitments, Section 2.23 with respect to any Extended                                                                                                             Class, Section 2.24 with respect to any Refinancing Commitments and in each case the rate of        SECTION 9.07       Applicable Law.  THIS AGREEMENT AND THE RIGHTS AND                                interest applicable thereto) which directly affects Lenders of one or more Classes of Initial Term  OBLIGATIONS  OF  THE  PARTIES  HEREUNDER  SHALL  BE  GOVERNED  BY,  AND                                    Loan Commitments, Incremental Loans or Incremental Loan Commitments, Refinancing Loans  CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE                                         or  Refinancing  Commitments,  or  Extended  Term  Loans  or  Extended  Revolving  Credit  OF NEW YORK.                                                                                                                Affected Facilities                                                                                                            Class of Loans, in each case, without the written consent of the Required Class Lenders under such        SECTION 9.08       Waivers;  Amendments.   (a)  No  failure  or  delay  of  the                      applicable Affected Facilities (and in the case of multiple Classes directly affected in the same or  Administrative  Agent,  the  Collateral  Agent  or  any  Lender  in  exercising  any  power  or  right     substantially the same way with respect to the Affected Facilities, such Required Class Lenders  hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single         shall consent together as one Class); (vi) amend, waive or otherwise modify any term or provision  or partial exercise of any such right or power, or any abandonment or discontinuance of steps to           (including the waiver of any conditions set forth in Section 4.03 as to any Credit Extension under  enforce such a right or power, preclude any other or further exercise thereof or the exercise of any       one or more Revolving Credit Facilities) which directly affects Lenders under one or more Classes  other right or power.  The rights and remedies of the Administrative Agent, the Collateral Agent           of Revolving Credit Commitments and does not directly affect Lenders under any other Class of  and  the  Lenders  hereunder  and  under  the other  Loan  Documents  are  cumulative  and  are  not       Loans,  in  each  case,  without  the  written  consent  of  the  Required  Class  Lenders  under  such  exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision            applicable Class of Revolving Credit Commitments (and in the case of multiple Classes which are  of this Agreement or any other Loan Document or consent to any departure by the Borrower or                affected,  such  Required  Class  Lenders  shall  consent  together  as  one  Class);  (vii)  modify  the  any other Loan Party therefrom shall in any event be effective unless the same shall be permitted          protections afforded to an SPV pursuant to the provisions of Section 9.04(i) without the written  by this Section 9.08 or, with respect to any Security Documents, Section 4.12 of Annex I, and then         consent  of  such  SPV;  (viii)  such waiver or consent shall be effective only in the specific instance and for the purpose for which  given.  No notice or demand on the Borrower in any case shall entitle the Borrower to any other  or further notice or demand in similar or other circumstances.                                             thereby;  (ix)  change  the  currency  in  which  any  Loan  is  permitted  to  be  made  or  is  payable                                                                                                             (including interest with respect to such Loan) without the prior written consent of each Lender; (x)        (a)    Except as otherwise set forth in this Agreement, neither this Agreement, any Loan             waive, amend or modify the proviso to Section 5.05(a) without the prior written consent of each  Document,  nor  any  provision  hereof  or  thereof  may  be  waived,  amended  or  modified  except       Lender; (xi) amend or otherwise modify the Financial Covenant and Section 7.03 as it applies to  pursuant to an agreement or agreements in writing entered into by the Borrower and the Required            such Financial Covenant, and in each case any definition related thereto (as any such definition is  Lenders (other than any amendment contemplated in clauses (i)-(vi) and (viii)-(xiv) below which            used therein but not as otherwise used in this Agreement or any other Loan Document) or waive  shall only require the consent of the Lenders, L/C Issuers or Swing Line Lenders specified therein);       any  Default  or  Event  of  Default  resulting  from  a  failure  to  perform  or  observe  the  Financial  provided, however, that no such agreement shall (i) decrease the principal amount of, or extend            Covenant or Section 7.03 as it applies to such Financial Covenant without the written consent of  the maturity of or any scheduled principal payment date or date for the payment of any interest on         the Required Revolving Credit Lenders; provided, that, the waivers described in this clause (xi)  any Loan or L/C Borrowing, or waive or excuse any such payment or any part thereof, or decrease            shall not require the consent of any Lenders other than the Required Revolving Credit Lenders;  the rate of interest on any Loan, without the prior written consent of each Lender directly adversely      (xii) modify any other provision, if any, of this Agreement that expressly requires the consent of  affected  thereby,  (ii)  increase  or  extend  the  Commitment  or  decrease  or  extend  the  date  for  each Lender or each directly affected Lender without the prior written consent of each Lender;  payment of any fees therein of any Lender without the prior written consent of such Lender, (iii)          (xiii) amend, modify or waive any provision with respect to Letters of Credit to the extent such  amend or modify the provisions of Section 9.04(l) or the provisions of this Section 9.08 or release        amendment, modification or waiver directly and adversely affects the rights or, duties of, or any  all  or substantially  all  of the  value  of  the  Facility  Guaranty  or all or  substantially all of  the fees or other amounts payable to, any L/C Issuer under this Agreement, any other Loan Document  Collateral, without the prior written consent of each Lender, (iv) change the provisions of any Loan       or any Letter of Credit, Application relating to any Letter of Credit issued or to be issued by it,  Document in a manner that by its terms directly affects the rights in respect of payments due to           without the written consent of such L/C Issuer; or (xiv) amend, modify or waive any provision  Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any             with respect to any Swing Line Loan to the extent such amendment, modification or waiver directly  other Class without the prior written consent of the Required Class Lenders of each such affected          and adversely affects the rights or duties of, or any fees or other amounts payable to any Swing  Class (and in the case of multiple Classes directly affected in the same or substantially the same         Line Lender without the written consent of such Swing Line Lender; provided, further, that no  way, the Lenders under such Classes shall consent together as one Class) (it being understood that         such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative  any  amendment  to  the  conditions  of  effectiveness  set  forth  in  Section  2.22  with  respect  to   Agent or the Collateral Agent hereunder or under any other Loan Document without the prior  Incremental Loan Commitments, Section 2.23 with respect to any Extended Class, Section 2.24                written consent of the Administrative Agent or the Collateral Agent; provided, however, that, for  with respect to any Refinancing Commitments, in each case, shall be subject to clause (v) below));         purposes of clauses (i) and (ii) above, a waiver of any condition precedent in Article IV of this                                         164                                                                                                       165  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






Agreement, the waiver of any Default or Event of Default, the waiver or reduction of any default           not payable as a result of the operation of this Section 9.09 shall be cumulated and the interest and  interest  or  mandatory  prepayment  or any  modification,  waiver  or  amendment  to  the  financial      Charges payable to such Lender in respect of other Loans or participations or periods shall be  definitions or financial ratios or any component thereof or the waiver of any other covenant shall         increased (but not above the Maximum Rate therefor) until such cumulated amount, together with  not constitute an increase of any Commitment of a Lender, a reduction or forgiveness of any                interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been  portion of any Loan or in the interest rates or the fees or premiums or a postponement of any date         received by such Lender.  scheduled for the payment of principal or interest or an extension of the final maturity of any Loan  or the scheduled termination date of any Commitment.                                                             SECTION 9.10      Entire Agreement.  This Agreement and the other Loan Documents                                                                                                             constitute the entire contract between the parties relative to the subject matter hereof.  Any other        (b)                                                                                                  previous agreement among the parties with respect to the subject matter hereof (other than the  Lenders from time to time, the Administrative Agent and the Borrower may amend this Agreement              Arranger Fee Letter) is superseded by this Agreement and the other Loan Documents.  Nothing in  or any other Loan Document (including, for the avoidance of doubt, any exhibit, schedule or other          this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon  attachment to any Loan Document) to correct an obvious error or omission jointly identified by             any  Person (other  than the  parties hereto  and  thereto,  their respective  successors  and  assigns  the  Borrower  and  the  Administrative  Agent  or  other  errors  or  omissions  of  a  technical  or     permitted hereunder and, to the extent expressly contemplated hereby, the Related Parties of each  immaterial nature (including, but not limited to, an incorrect cross-reference).  Notwithstanding          of  the  Administrative  Agent,  the  Collateral  Agent  and  the  Lenders)  any  rights,  remedies,  anything to the contrary contained herein, such amendment shall become effective without any               obligations or liabilities under or by reason of this Agreement or the other Loan Documents.  further consent of any other party to such Loan Document.                                                                                                                   SECTION 9.11      Waiver  of  Jury  Trial.   EACH  PARTY  HERETO  HEREBY        (c)    Notwithstanding anything  to  the  contrary  herein,  (i)  no  Defaulting  Lender  shall      WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT  have any right to approve or disapprove any amendment, waiver or consent hereunder (and any                IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR  amendment, waiver or consent which by its terms requires the consent of all Lenders or each                INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT  affected Lender may be effected with the consent of the applicable Lenders other than Defaulting           OR ANY OF THE OTHER LOAN DOCUMENTS.  EACH PARTY HERETO (A) CERTIFIES  Lenders), except that (x) the Commitment of any such Defaulting Lender may not be increased or             THAT  NO  REPRESENTATIVE,  AGENT  OR  ATTORNEY  OF  ANY  OTHER  PARTY  HAS  extended  without  the  consent  of  such  Lender and  (y)  any waiver,  amendment  or modification        REPRESENTED,  EXPRESSLY  OR  OTHERWISE,  THAT  SUCH  OTHER  PARTY  WOULD  requiring  the  consent  of  all  Lenders  or  each  affected  Lender  that  by  its  terms  materially  and NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER  adversely  affects  any  Defaulting  Lender  to  a  greater  extent  than  other  affected  Lenders  shall AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN  require the consent of such Defaulting Lender, (ii) this Agreement may be amended (or amended              INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,  and restated) with the written consent of the Required Lenders, the Administrative Agent and the           AS  APPLICABLE,  BY,  AMONG  OTHER  THINGS,  THE  MUTUAL  WAIVERS  AND  Borrower (x) to add one or more additional credit facilities to this Agreement and to permit the           CERTIFICATIONS IN THIS SECTION 9.11.  extensions of credit from time to time outstanding thereunder and the accrued interest and fees in  respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents                  SECTION 9.12      Severability.   In  the  event  any  one  or  more  of  the  provisions  with the Term Loans, Revolving Credit Loans, Swing Line Loans and L/C Obligations and the                  contained in this Agreement or in any other Loan Document should be held invalid, illegal or  accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding          unenforceable in any respect, the validity, legality and enforceability of the remaining provisions  such credit facilities in any determination of the Required Lenders, and (iii) Annex I and Annex II        contained  herein  and  therein  shall  not  in  any  way  be  affected  or  impaired  thereby  (it  being  of this Agreement may be amended with the written consent of the Administrative Agent and the              understood that the invalidity of a particular provision in a particular jurisdiction shall not in and  Borrower, but without the consent of any other Person, to conform the text of Annex I  and/or              of itself affect the validity of such provision in any other jurisdiction).  The parties shall endeavor  Annex II                                                                                                   in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid  correct an obvious error or omission.                                                                      provisions the economic effect of which comes as close as possible to that of the invalid, illegal or                                                                                                             unenforceable provisions.        SECTION 9.09       Interest Rate Limitation.  Notwithstanding anything herein to the  contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and           SECTION 9.13      Counterparts.   This  Agreement  may  be  executed  in  counterparts  other amounts which are treated as interest on such Loan under applicable law (collectively the            (and by different parties hereto on different counterparts), each of which shall constitute an original   Charges                                           Maximum  Rate                                           but all of which when taken together shall constitute a single contract, and shall become effective  contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance         as provided in Section 9.03.  Delivery of an executed signature page to this Agreement by facsimile  with applicable law, the rate of interest payable in respect of such Loan hereunder, together with  all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent            delivery of a manually signed counterpart of this Agreement.  lawful, the interest and Charges that would have been payable in respect of such Loan but were                                          166                                                                                                       167  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






      SECTION 9.14       Headings.  Article and Section headings and the Table of Contents                 than those of this Section 9.16, to any actual or prospective assignee of or participant in any of its  used herein are for convenience of reference only, are not part of this Agreement and are not to           rights or obligations under this Agreement and the other Loan Documents, (f) with the consent of  affect the construction of, or to be taken into consideration in interpreting, this Agreement.             the Borrower, (g) to the extent such Information becomes publicly available other than as a result                                                                                                             of a breach of this Section 9.16, (h) subject to an agreement containing provisions substantially        SECTION 9.15       Jurisdiction; Consent to Service of Process.  (a) Each party hereto               the same as or no less restrictive than those of this Section 9.16, to actual or proposed direct or  hereby  irrevocably  and  unconditionally  submits,  for  itself  and  its  property,  to  the  exclusive  indirect counterparties in connection with any Swap Contract relating to the Loan Parties or their  jurisdiction of any New York State court or Federal court of the United States of America sitting          obligations or (i) disclosure to any rating agency when required by it, provided that, prior to any  in New York County, and any appellate court from any thereof, in any action or proceeding arising          disclosure, such rating agency shall undertake in writing to preserve the confidentiality of any  out of or relating to this Agreement or the other Loan Documents (other than any Loan Documents            confidential information relating to Loan Parties received by it from any Agent or any Lender.  In  governed  by  any  law  other  than  New  York  law),  or  for  recognition  or  enforcement  of  any      addition,  each  Agent  and  each  Lender  may  disclose  the  existence  of  this  Agreement  and  the  judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all            information  about  this  Agreement  to  market  data  collectors,  similar  services  providers  to  the  claims in respect of any such action or proceeding may be heard and determined in such New York            lending industry, and service providers to the Agents and the Lenders in connection with the  State or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees        administration  and  management  of  this  Agreement  and  the  other  Loan  Documents.   For  the  that a final judgment in any such action or proceeding shall be conclusive and may be enforced in          purposes  of  this  Section  9.16 other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in            Borrower and related to the Borrower or its business, other than any such information that was  this Agreement shall affect any right that the Administrative Agent, the Collateral Agent or any           available to the Administrative Agent, the Collateral Agent or any Lender on a non-confidential  Lender may otherwise have to bring any action or proceeding relating to this Agreement or the              basis prior to its disclosure by the Borrower.  Any Person required to maintain the confidentiality  other Loan Documents against the Borrower or its properties in the courts of any jurisdiction if           of Information as provided in this Section 9.16 shall be considered to have complied with its  required to realize upon the Collateral as determined in good faith by the Person bringing such            obligation  to  do  so  if  such  Person  has  exercised  the  same  degree  of  care  to  maintain  the  action or proceeding.                                                                                      confidentiality of such Information as such Person would accord its own confidential information.         (a)    Each party hereto hereby  irrevocably and unconditionally waives, to the fullest                    SECTION 9.17      Lender Action; Intercreditor Agreement.  (a) Each Lender agrees  extent it may legally and effectively do so, any objection which it may now or hereafter have to           that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or  the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or      remedy against any Loan Party or any other obligor under any of the Loan Documents (including  the other Loan Documents in any New York State or Federal court sitting in New York County.                the exercise of any right  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the          rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial  defense of an inconvenient forum to the maintenance of such action or proceeding in any such               procedures, with respect to any Collateral or any other property of any such Loan Party, unless  court.                                                                                                     expressly provided for herein or in any other Loan Document, without the prior written consent of                                                                                                             the Administrative Agent.  The provisions of this Section 9.17 are for the sole benefit of the        (b)    Each party to this Agreement irrevocably consents to service of process in the                Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party.  manner provided for notices in Section 9.01 excluding service of process by mail.  Nothing in this  Agreement will affect the right of any party to this Agreement to serve process in any other manner              (a)   Each Lender that has signed this Agreement shall be deemed to have consented to  permitted by law.                                                                                          and hereby irrevocably authorizes the Administrative Agent and the Collateral Agent to enter into                                                                                                             (i)        SECTION 9.16       Confidentiality.  Each of the Administrative Agent, the Collateral  Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below),        defined in the Closing Date Intercreditor Agreement) (and including any and all amendments,  except that Information may be disclosed (a)                                                               amendments and restatements, modifications, supplements and acknowledgments thereto) from  and agents, including accountants, legal counsel, numbering, administration and settlement service         time to time, and agrees to be bound by the provisions thereof and (ii) any Loan Escrow Document  providers and other advisors (it being understood that the Persons to whom such disclosure is made  will  be  informed  of  the  confidential  nature  of  such  Information  and  instructed  to  keep  such  Information confidential), (b) to the extent requested or required by any regulatory authority or          including any and all amendments, amendments and restatements, modifications, supplements and  quasi-regulatory authority (such as the National Association of Insurance Commissioners), (c) to           acknowledgments thereto) from time to time, and agrees to be bound by the provisions thereof.  the extent required by applicable laws or regulations or by any subpoena or similar legal process,  (d) in connection with the exercise of any remedies hereunder or under the other Loan Documents                  (b)   Notwithstanding  anything  herein  to  the  contrary,  each  Lender  and  the  Agents  or any suit, action or proceeding relating to the enforcement of its rights hereunder or thereunder,       acknowledge that the Lien and security interest granted to the Collateral Agent pursuant to the  (e) subject to an agreement containing provisions substantially the same as or no less restrictive         Security Documents and the exercise of any right or remedy by the Collateral Agent thereunder,                                          168                                                                                                       169  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






shall be subject to the provisions  of any  Intercreditor Agreement (on and after the execution            Guarantor (but excluding any transaction subject to Article V of Annex I hereof), if such sale or  thereof).  In the event of a conflict or any inconsistency between the terms of any Intercreditor          other disposition  does not violate Section 4.08 of Annex  I hereof, but  only in  respect  of the  Agreement and the Security Documents, the terms of such Intercreditor Agreement shall prevail.             Collateral sold or otherwise disposed of;         SECTION 9.18       USA PATRIOT Act Notice.  Each Lender, the Administrative Agent                          (b)   in connection with the release of a Guarantor from its Loan Guarantee pursuant to  (for itself and not on behalf of any Lender) hereby notifies the Borrower and the Guarantors that          the terms of this Agreement, the release of the property and assets of such Guarantor;  pursuant  to  the  requirements  of  the  USA  PATRIOT  Act  and/or  the  Beneficial  Ownership  Regulation, it is required to obtain, verify and record information that identifies the Borrower and             (c)   if  the  Borrower  designates  any  Restricted  Subsidiary  to  be  an  Unrestricted  the  Guarantors,  which  information  includes  the  name  and  address  of  the  Borrower  and  the       Subsidiary in  accordance with the  applicable provisions  of this  Agreement,  the  release  of the  Guarantors and other information that will allow such Lender or the Administrative Agent, as               property, assets and Capital Stock of such Unrestricted Subsidiary;  applicable, to identify the Borrower and the Guarantors in accordance with the USA PATRIOT  Act and/or the Beneficial Ownership Regulation.                                                                  (d)   in  accordance  with  an  enforcement  sale  in  compliance  with  the  Intercreditor                                                                                                             Agreement or any Additional  Intercreditor Agreement, or as otherwise provided for under any        SECTION 9.19       No Fiduciary Duty.  The parties hereto  hereby acknowledge that                   Intercreditor Agreement or any Additional Intercreditor Agreement;  each Agent, the Lead Arrangers, each Lender and their respective Affiliates (collectively, solely                                 Lenders                  ic interests that conflict with                          (e)   as provided under Section 9.08, Section 4.06(b) of Annex I (in which case, for the  those of any Loan Party, its stockholders and/or their respective Affiliates.  The Borrower agrees,        avoidance of doubt, such release shall be automatic and unconditional) and Section 4.12 of Annex  on behalf of itself and each other Loan Party, that nothing in the Loan Documents or otherwise             I hereof;  will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied  duty between any Lender, on the one hand, and any Loan Party, its stockholders or their respective               (f)   upon termination of the Commitments and payment in full of all Obligations (other  Affiliates on the other hand.  The Borrower acknowledges and agrees, on behalf of itself and each          than (i) contingent indemnification obligations as to which no claim has been asserted and (ii)  other Loan Party, that (a) the transactions contemplated by the Loan Documents (including the              obligations  and  liabilities  under  Treasury  Services  Agreements  and  Swap  Contracts)  and  the                                                                 -length  commercial                         expiration  or termination  of all  Letters  of  Credit  (other  than  Letters  of  Credit  that  are  Cash  transactions between the Lenders, on the one hand, and the Loan Parties, on the other hand, and            Collateralized or back-stopped by a letter of credit in form, amount and substance reasonably  (b) in connection therewith and with the process leading thereto, (i) no Lender has assumed an             satisfactory to the applicable L/C Issuer or a deemed reissuance under another facility as to which  advisory or fiduciary responsibility in favor of any Loan Party, with respect to the transactions          other arrangements satisfactory to the Administrative Agent and the L/C Issuer shall have been  contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process            made);  leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise                                                                                                                   (g)   to  release  and  re-take  any  Lien  on  any  Collateral  to  the  extent  not  otherwise  any Loan Party, on other matters) or any other obligation to any Loan Party except the obligations                                                                                                             prohibited by the terms of this Agreement, the Security Documents, any Intercreditor Agreement  expressly set forth in the Loan Documents and (ii) each Lender is acting solely as principal and                                                                                                             or any Additional Intercreditor Agreement;  not as the agent or fiduciary of any Loan Party.                                                                                                                   (h)   in connection with a transaction permitted by Article V of Annex I hereof;         The Borrower acknowledges and agrees, on behalf of itself and each other Loan Party, that  it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it            (i)   with respect to any Collateral that is transferred to a Receivables Entity pursuant to  is responsible for making its own independent judgment with respect to such transactions and the           a  Qualified  Receivables  Financing,  and  with  respect  to  any  securitization  obligation  that  is  process leading thereto.  The Borrower agrees, on behalf of itself and each other Loan Party, that         transferred in one or more transactions, to a Receivables Entity; or  it will not claim that any Lender has rendered advisory services of any nature or respect, or owes  a fiduciary or similar duty to any Loan Party, in connection with such transaction or the process                (j)   if the respective property or assets cease to constitute Collateral (including as a  leading thereto.                                                                                           result of being or becoming an Excluded Asset).         SECTION 9.20       Release of Liens.  The Borrower and the Guarantors will be entitled                     The Collateral Agent and the Administrative Agent will take all necessary action required  to release the Liens in respect of the Collateral securing the Obligations under any one or more of        to  effectuate  any  release  of  the  Collateral  securing  the  Loans  and  the  Loan  Guarantees,  in  the following circumstances:                                                                               accordance with the provisions of this Agreement, any Intercreditor Agreement (on and after the                                                                                                             execution thereof) or any Additional Intercreditor Agreement (on and after the execution thereof)        (a)    in connection with any sale or other disposition of the Collateral (other than the            and the relevant Security Document.  Each of the releases set forth above shall be effected by the  pledges over all of the Capital Stock of the Borrower and any intercompany receivables owed by  the Borrower or any of its Restricted Subsidiaries)  to  a Person that is not the Borrower or a                                         170                                                                                                       171  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






Collateral Agent without the consent of the Lenders or any action on the part of the Administrative              (a)   the  application  of  any  Write-Down  and  Conversion  Powers  by  a  Resolution  Agent.                                                                                                     Authority to any such liabilities arising hereunder which may be payable to it by any party hereto                                                                                                             that is an Applicable Financial Institution; and        The Collateral Agent and the Administrative Agent will agree to any release of the security  interest in respect of the Collateral that is in accordance with this Agreement, any Intercreditor               (b)   the effects of any Bail-In Action on any such liability, including, if applicable:  Agreement (on and after the execution thereof) or any Additional Intercreditor Agreement (on and  after the execution thereof) and the relevant Security  Document, without requiring any  Lender                          (i)    a reduction in full or in part or cancellation of any such liability;  consent or any action on the part of the Administrative Agent.  Upon request of the Borrower and                                                                                                                           (ii)   a conversion of all, or a portion of, such liability into shares or other  release  have  been  satisfied,  the  Collateral  Agent  shall  execute,  deliver  or  acknowledge  any            instruments of ownership in such Applicable Financial Institution, its parent entity, or a  necessary or proper instruments of termination, satisfaction or release to evidence the release of                 bridge institution that may be issued to it or otherwise conferred on it, and that such  Collateral permitted to be released pursuant to this Agreement, any Intercreditor Agreement, any                   shares or other instruments of ownership will be accepted by it in lieu of any rights with  Additional Intercreditor Agreement and the Security Documents.  At the request of the Borrower,                    respect to any such liability under this Agreement or any other Loan Document; or  the Collateral Agent shall execute and deliver an appropriate instrument evidencing such release  (in the form provided by the Borrower).                                                                                  (iii)  the variation of the terms of such liability in connection with the exercise                                                                                                                     of the write-down and conversion powers of any Resolution Authority.        SECTION 9.21       Judgment Currency.  If, for the purposes of obtaining judgment in  any court, it is necessary to convert a sum due hereunder or any other Loan Document in one                      SECTION 9.23      Acknowledgement Regarding Any Supported QFCs.  To the extent  currency into another currency, the rate of exchange used shall be that at which in accordance with        that the Credit Documents provide support, through a guarantee or otherwise, of Swap Obligations  normal banking procedures the Administrative Agent could purchase the first currency with such                                                                   QFC Credit Support other  currency  on  the  Business  Day  preceding  that  on  which  final  judgment  is  given.   The                Supported QFC obligation of any Loan Party in respect of any such sum due from it to the Administrative Agent            resolution  power  of  the  Federal  Deposit  Insurance  Corporation  under  the  Federal  Deposit  or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment             Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act                   Judgment Currency                                                                                                                          U.S. Special Resolution Regimes                                                          Agreement Currency                                respect of such Supported QFC and QFC Credit Support (with the provisions below applicable  discharged only to the extent that on the Business Day following receipt by the Administrative             notwithstanding that the Credit Documents and any Supported QFC may in fact be stated to be  Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may              governed by the laws of the State of New York and/or of the United States or any other state of  in  accordance  with  normal  banking  procedures  purchase  the  Agreement  Currency  with  the           the United States):  Judgment Currency.  If the amount of the Agreement Currency so purchased is less than the sum                                                                                                                   (a)                                                                Covered  originally due to the Administrative Agent from a Loan Party in the Agreement Currency, such                                                                                                             Party Loan Party agrees, as a separate obligation and notwithstanding any such judgment, to indemnify                                                                                                             such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation  the Administrative Agent or the Person to whom such obligation was owing against such loss.  If                                                                                                             in or under such Supported QFC and such QFC Credit Support, and any rights in property securing  the amount of the Agreement Currency so purchased is greater than the sum originally due to the                                                                                                             such Supported QFC) from such Covered Party will be effective to the same extent as the transfer  Administrative Agent in such currency, the Administrative Agent agrees to return the amount of                                                                                                             would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC  any excess to such Loan Party (or to any other Person who may be entitled thereto under applicable                                                                                                             Credit Support (and any such interest, obligation and rights in property) were governed by the laws  Law).                                                                                                             of the United States or a state of the United States.  In the event a Covered Party or a BHC Act        SECTION 9.22       Acknowledgement and Consent to Bail-In of Applicable Financial                    Affiliate of a  Covered Party  becomes subject to  a proceeding  under a U.S. Special Resolution  Institutions.  Solely to the extent any Lender or Issuing Bank that is an Applicable Financial             Regime, Default Rights under the Credit Documents that might otherwise apply to such Supported  Institution is a party to this Agreement, notwithstanding anything to the contrary in any Loan             QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted  Document or in any other agreement, arrangement or understanding among the parties hereto, each            to be exercised to no greater extent than such Default Rights could be exercised under the U.S.  party hereto acknowledges that any liability of any Applicable Financial Institution arising under         Special Resolution Regime if the Supported QFC and the Credit Documents were governed by the  any Loan Document, to the extent such liability is unsecured, may be subject to the write-down             laws of the United States or a state of the United States.  Without limitation of the foregoing, it is  and conversion powers of a Resolution Authority and agrees and consents to, and acknowledges               understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender  and agrees to be bound by:                                                                                 shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any                                                                                                             QFC Credit Support.                                          172                                                                                                       173  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 






      (b)    As used in this Section 9.23, the following terms shall have the following meanings:                        (iii)  (A)                                                                                                                     Professiona                                                 -14), (1)  such         BHC Act Affiliate                                                                                           Qualified Professional Asset Manager made the investment decision on behalf of such  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.                                                  Lender to enter into, participate in, administer and perform the Loans, the Letters of                                                                                                                     Credit, the Commitments and this Agreement, (2)  the entrance into, participation in,         Covered Entity                                                                                              administration of and performance of the Loans, the Letters of Credit, the Commitments                                                                                                                     and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I        (a)                                                             nce with, 12                                 of  PTE  84-14  and  (3)   to  the  best  knowledge  of  such  Lender,  the  requirements  of  C.F.R. § 252.82(b);                                                                                                subsection (a) of Part I of PTE 84-                                                                                                                    into, participation in, administration of and performance of the Loans, the Letters of        (b)                                                                                                                     Credit, the Commitments and this Agreement, or   C.F.R. § 47.3(b); or                                                                                                                           (iv)   such other  representation, warranty and covenant as may be agreed in        (c)                                                                                                                     writing between the Administrative Agent, in its sole discretion, and such Lender.  C.F.R. § 382.2(b).                                                                                                                   (b)   In addition, unless either (i) sub-clause (i) in the immediately preceding clause (a)         Default  Right has the  meaning assigned  to  that term in, and shall be interpreted in                                                                                                             is true with respect to a Lender or (ii) a Lender has provided another representation, warranty and  accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.                                                                                                             covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender         QFC                                                                                                 further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).                                                   and (y) covenants, from the date such Person became a Lender party hereto to the date such Person                                                                                                             ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Lead        SECTION 9.24       Certain  ERISA  Matters.   (a)  Each  Lender  (x)  represents  and                Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit  warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the         of the Borrower or any other Loan Party, that none of the Administrative Agent and the Lead  date such Person became a Lender party hereto to the date such Person ceases being a Lender party          Arrangers and their respective Affiliates is a fiduciary with respect to the assets of such Lender  hereto, for the benefit of, the Administrative Agent and the Lead Arrangers and their respective           involved in the Loans, the Letters of Credit, the Commitments and this Agreement (including in  Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other        connection with the reservation or exercise of any rights by the Administrative Agent under this  Loan Party, that at least one of the following is and will be true:                                        Agreement, any Loan Document or any documents related to hereto or thereto).                  (i)           3(42) of ERISA or otherwise for purposes of Title I of ERISA or Section 4975 of the                                            [Signature Pages Omitted]           Code) of one or more Benefit Plans in connection with the Loans, the Letters of Credit           or the Commitments,                  (ii)  the prohibited transaction exemption set forth in one or more PTEs, such           as PTE 84-14 (a class exemption for certain transactions determined by independent           qualified  professional  asset  managers),  PTE  95-60  (a  class  exemption  for  certain           transactions  involving  insurance  company  general  accounts),  PTE  90-1  (a  class           exemption  for  certain  transactions  involving  insurance  company  pooled  separate           accounts),  PTE  91-38  (a  class  exemption  for  certain  transactions  involving  bank           collective investment funds) or PTE 96-23 (a class exemption for certain transactions           determined  by  in-house  asset  managers),  is  applicable  so  as  to  exempt  from  the           prohibitions of Section 406 of ERISA and Section 4975 of the           entrance into, participation in, administration of and  performance of the Loans, the           Letters of Credit, the Commitments and this Agreement,                                           174                                                                                                       175  76797407_14                                                                                                76797407_14  EU-DOCS\25892879.17                                                                                        EU-DOCS\25892879.17 





 












 












 












 












 






                                                                                                                                                                                                                                                                                             ANNEX I                                                                                                                        COVENANTS                CITICORP    NORTH     AMERICA,    INC.,  as                Revolving Credit Lender                                               Save  where  specified  to  the  contrary  or  where  defined  in  Section  1.01  of  the  Credit                                                                                                                                           Credit  Agreement                                                                                                      Agreement                                                             to them in                By:                                                                   Annex II.                Name: Paul Simpkin                                                                    Title: Managing Director                                              Save where specified to the contrary, references in this Annex to sections of Articles IV or V                                                                                      are to those sections of this Annex.                                                                                                                                                                                                          ARTICLE IV                                                                                                                                                                                      Section 4.01. [Reserved]                                                                                       Section 4.02. [Reserved]                                                                                       Section 4.03. [Reserved]                                                                                       Section 4.04. Limitation on Indebtedness and Issuance of Disqualified Stock and                                                                                      Preferred Stock                                                                                       (a)    The Borrower will not and will not permit any of its Restricted Subsidiaries to, Incur                                                                                      any  Indebtedness  (including  Acquired  Indebtedness)  or  issue  any  shares  of  Disqualified                                                                                      Stock  and  the  Borrower  will  not  permit  any  of  its  Restricted  Subsidiaries  to  issue  any                                                                                      Preferred  Stock; provided, however,  that  the  Borrower  may  Incur  Indebtedness  and  issue                                                                                       Indebtedness and issue shares of Preferred Stock if on the date on which such Indebtedness is                                                                                      Incurred  or  such  Disqualified  Stock  or  Preferred  Stock  is  issued,  the  Consolidated  Net                                                                                      Leverage Ratio would have been no greater than 5.50 to 1.00 , in each case determined on a                                                                                      pro forma basis (including a pro forma application of the net proceeds therefrom), as if such                                                                                      Indebtedness  had  been  Incurred,  or  the  Disqualified  Stock  or  Preferred  Stock  had  been                                                                                      issued, as  the  case  may  be,  and the application  of  proceeds therefrom had  occurred,  at the                                                                                      beginning of the relevant period.                                                                                       (b)    Section  4.04(a)  above  will  not  prohibit  the  Incurrence  of  the  following  items  of                                                                                      Indebtedness:                                                                                              (1)   Indebtedness Incurred pursuant to any Credit Facility (including in respect of                                                                                                                                                        any  Refinancing                                                                                      Indebtedness  in  respect  thereof,  in  a  maximum  aggregate  principal  amount  at  any  time                                                                                      outstanding not to exceed the greater of $900 million and 400% of Pro Forma EBITDA for                                                                                      the most recently ended four full fiscal quarters for which internal financial statements of the                                                                                      Borrower are available immediately preceding the date of determination (for the avoidance of                                                                                      doubt,  without  duplication  and  calculated  on  the  date  hereof  to  include  the  full  amount  of                                                                                      Term  Loan  Commitments,   Term  Loans   and  Revolving  Credit  Commitments  outstanding                                                                                      hereunder as of the date  hereof); provided,  that  the amount of  Indebtedness which  may  be                                                                                      incurred by the Borrower and its Restricted Subsidiaries pursuant to this Section 4.04(b)(1)  [Signature Page to the Credit Agreement]                                            shall be reduced by an amount (and the corresponding  percentage of Pro Forma EBITDA)                                                                                                          77626057_8                                                                                                                       EU-DOCS\25939615.7 





 






                                                                                                                                                                                            equal  to  the  aggregate  principal  amount  of  the  Existing  Target  Notes  which  remain             for,  or  the  net  proceeds  of which  are  used  to  renew,  refund,  refinance,  replace,  defease  or  outstanding following the completion of the Change of Control Tender; provided further, that              discharge any, or otherwise Incurred in respect of any, Indebtedness described in sub-clauses  any  Indebtedness  incurred  under  this  Section  4.04(b)(1)  may  be  refinanced  with  additional      (a), (b) or (c) of this Section 4.04(b)(4) or Section 4.04(b)(5) or Incurred pursuant to Section  Indebtedness in an amount equal to the principal of the Indebtedness so refinanced, plus any              4.04(a),  (c)  Management  Advances;  and  (d)  Indebtedness  represented  by  the  Security  additional  amount  to  pay  premiums  (including  tender  premiums),  accrued  and  unpaid  interest, expenses, defeasance costs and fees in connection therewith;                                    created under the Intercreditor Agreement and the Security Documents;         (2)   (a) Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness                          (5)   Indebtedness of (i) any Person Incurred or outstanding on the date on which  of the Borrower or any Restricted Subsidiary to the extent such guaranteed Indebtedness was               such  Person  becomes  a  Restricted  Subsidiary  or  is  merged,  consolidated,  amalgamated  or  permitted  to  be  incurred  by  another  provision  of  this  Section  4.04; provided  that  if  such    otherwise  combined  with  the  Borrower  or  any  Restricted  Subsidiary  or  pursuant  to  any  Indebtedness is subordinated in right of payment to, or pari passu in right of payment with,              acquisition  of  assets  and  assumption  of  related  liabilities  by  the  Borrower  or  a  Restricted  the Loans or a Loan Guarantee, as applicable, then the Guarantee of such Indebtedness shall               Subsidiary  (including  in  contemplation  of  such  transaction)  or  (ii)  the  Borrower  or  any  be subordinated in right of payment to, or pari passu in right of payment with, the Loans or              Restricted  Subsidiary  Incurred  to  provide  all  or  any  portion  of  the  funds  utilized  to  such  Loan  Guarantee,  as  applicable,  substantially  to  the  same  extent  as  such  guaranteed       consummate  the  transaction  or  series  of  related  transactions  pursuant  to  which  a  Person  Indebtedness or (b) without limiting Section 4.06, Indebtedness arising by reason of any Lien             became a Restricted Subsidiary or was otherwise acquired by  the Borrower or a Restricted  granted by or applicable to the Borrower or any Restricted Subsidiary securing Indebtedness               Subsidiary or pursuant to any Investment or acquisition of assets and assumption of related  of the Borrower or any Restricted Subsidiary so long as the Incurrence of such Indebtedness               liabilities by the Borrower or a Restricted Subsidiary or otherwise in connection with or in  is not prohibited by the terms of this Agreement;                                                         contemplation  of  such  acquisition  or  other  transaction; provided, however,  that  (a)  the                                                                                                            Borrower would have been able to incur $1.00 of additional Indebtedness pursuant to Section        (3)   Indebtedness of the Borrower owing to and held by any Restricted Subsidiary,                  4.04(a)  after  giving  effect  to  the  Incurrence  of  such  Indebtedness  pursuant  to  this  Section  or Indebtedness of a Restricted Subsidiary owing to and held by the Borrower or any other                 4.04(b)(5)  or  (b)  the  Consolidated  Net  Leverage  Ratio  would  not  be  greater  than  it  was  Restricted Subsidiary; provided, however, that if the Borrower or any Guarantor is the obligor            immediately prior to giving effect to such Incurrence;   on such Indebtedness and the payee is not the Borrower or a Guarantor, such Indebtedness  must be unsecured and ((i) except in  respect of intercompany current liabilities incurred in                    (6)   [Reserved];   connection with cash management positions of the Borrower and the Restricted Subsidiaries  and the Global Trading Loan and (ii) only to the extent legally permitted (the Borrower and                      (7)   (a)  Indebtedness  under  Currency  Agreements  (other  than  Currency  the  Restricted  Subsidiaries  having  completed  all  procedures  required  in  the  reasonable          Agreements  described  in  (b)  below),  Interest  Rate  Agreements  and  Commodity  Hedging  judgment of directors or officers of the obligee or obligor to protect such Persons from any              Agreements and (b) Indebtedness under Currency Agreements entered into in order to hedge  penalty  or  civil  or  criminal  liability  in  connection  with  the  subordination  of  such           any operating expenses and capital expenditures Incurred in the ordinary course of business;  Indebtedness)) expressly subordinated to the prior payment in full in cash of all obligations             in  each  case  with  respect  to  clauses  (a)  and  (b)  hereof,  entered  into  for bona  fide  hedging  then due with respect to the Loans, in the case of the Borrower, or the Loan Guarantees, in               purposes of the Borrower or the Restricted Subsidiaries and not for speculative purposes (as  the case of a Guarantor; provided that:                                                                   determined in good faith by an Officer or the Board of Directors of the Parent Guarantor or                                                                                                            the Borrower);                        (i)  any  subsequent  issuance  or  transfer  of  Capital  Stock  or  any                           other  event  which  results  in  any  such  Indebtedness  being                        (8)   Indebtedness  consisting  of  (A)  mortgage  financings,  Purchase  Money                           beneficially  held  by  a  Person  other  than  the  Borrower  or  a             Obligations or other financings  Incurred for the purpose of financing all or any part of the                           Restricted Subsidiary; and                                                       purchase price or cost of design, construction, installation or improvement of property (real                                                                                                            or personal), plant or equipment or other assets (including Capital Stock) used or useful in a                        (ii) any sale or other transfer of any such Indebtedness to a Person                Similar Business or (B) Indebtedness otherwise Incurred to finance the purchase, lease, rental                           other than the Borrower or a Restricted Subsidiary,                              or  cost  of  design,  construction,  installation  or  improvement  of  property  (real  or  personal),                                                                                                            plant  or equipment that is  used  or useful in a Similar Business,  whether  through the direct              shall be deemed, in each case, to constitute an Incurrence of such Indebtedness               purchase  of  assets  or  the  Capital  Stock of  any  Person  owning such  assets,  in  an  aggregate  not permitted by this Section 4.04(b)(3) by the Borrower or such Restricted Subsidiary, as the            outstanding  principal  amount  which,  when  taken  together  with  the  principal  amount  of  all  case may be;                                                                                              other Indebtedness Incurred pursuant to this Section 4.04(b)(8) and then outstanding, will not                                                                                                            exceed at any time outstanding the greater of $20 million and 10% of Pro Forma EBITDA for        (4)   (a) Indebtedness represented by the Senior Secured Notes issued on the Initial                the most recently ended four full fiscal quarters for which internal financial statements of the  Funding  Date  and  the  Guarantees  thereof;  (b)  any  Indebtedness  (other  than  Indebtedness         Borrower  are available immediately preceding the date of determination; provided that any  described  in  Section  4.04(b)(1)  and  Section  4.04(b)(3))  outstanding  on  the  Initial  Funding     Indebtedness  incurred  under  this  Section  4.04(b)(8)  may  be  refinanced  with  additional  Date,  after  giving  effect  to  the  Transactions,  including  the  issuance  of  the  Senior  Secured  Indebtedness in an amount equal to the principal of the Indebtedness so refinanced, plus any  Notes and the application of the proceeds thereof and the repurchase of any Existing Target  Notes in the Change of Control Tender; (c) Refinancing Indebtedness Incurred in exchange                                                                                2                                                                                                          3                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            additional  amount  to  pay  premiums  (including  tender  premiums),  accrued  and  unpaid               (other  than  to  the  Borrower  or  a  Restricted  Subsidiary)  of  its  Subordinated  Shareholder  interest, expenses, defeasance costs and fees in connection therewith;                                    Funding  or Capital Stock (other than Disqualified Stock, Designated Preference Shares, the                                                                                                            Equity  Contribution  or  an  Excluded  Contribution)  or  otherwise  contributed  to  the  equity        (9)   Indebtedness  in  respect  of  (a)                        -insurance                          (other  than  through  the  issuance  of  Disqualified  Stock,  Designated  Preference  Shares,  the  obligations,  performance,  indemnity,  surety,  judgment,  appeal,  advance  payment,  customs,          Equity Contribution or an Excluded Contribution) of the Borrower, in each case, subsequent  VAT or other tax or other guarantees or other similar bonds, instruments or obligations and               to  the  Closing  Date; provided,  however,  that  (i)  any  such  Net  Cash  Proceeds  that  are  so  completion guarantees and warranties provided by the Borrower or a Restricted Subsidiary or               received or contributed shall be excluded for purposes of making Restricted Payments under  relating to liabilities, obligations or guarantees (including auction guarantees) Incurred in the         Section 4.05(a), Section 4.05(b)(1), Section 4.05(b)(6) and Section 4.05(b)(10) to the extent  ordinary  course  of  business  or  in  respect  of  any  governmental  requirement,  including  in       the Borrower or a Restricted Subsidiary incurs Indebtedness in reliance thereon and (ii) any  relation to a governmental requirement to provide a guarantee or bond, (b) letters of credit,             Net  Cash  Proceeds  that  are  so  received  or  contributed  shall  be  excluded  for  purposes  of                                                                                                            Incurring Indebtedness pursuant to this Section 4.04(b)(14) to the extent the Borrower  or any  to  liabilities  or obligations  Incurred in  the  ordinary  course  of  business, provided,  however,    Restricted  Subsidiary  makes  a  Restricted  Payment  under  Section  4.05(b)(1),  Section  that  upon  the  drawing  of  such  letters  of  credit  or  other  instrument,  such  obligations  are   4.05(b)(6)  and  Section  4.05(b)(10)  in  reliance  thereon; provided  that  any  Indebtedness  reimbursed within 30 days following such drawing; (c) the financing of insurance premiums                 incurred under this Section 4.04(b)(14) may be refinanced with additional Indebtedness in an  in the ordinary course of business; and (d) any customary cash management, cash pooling or                amount equal to the principal of the Indebtedness so refinanced, plus any additional amount  netting or setting off arrangements in the ordinary course of business;                                   to  pay  premiums  (including  tender  premiums),  accrued  and  unpaid  interest,  expenses,                                                                                                            defeasance costs and fees in connection therewith;        (10)  Indebtedness  arising  from  agreements  providing  for  customary  guarantees,  indemnification, obligations in respect of earnouts or other adjustments of purchase price or,                   (15)  Indebtedness  of  the  Borrower  or  any  of  its  Restricted  Subsidiaries  arising  in  each case,  similar obligations,  in each  case,  Incurred or  assumed in  connection  with the       pursuant to any Permitted Reorganization; and  acquisition  or  disposition  of  any  business  or  assets  or  Person  or  any  Capital  Stock  of  a  Subsidiary  (other  than  Guarantees  of  Indebtedness  Incurred  by  any  Person  acquiring  or                 (16)  Indebtedness, Disqualified Stock or Preferred Stock in an aggregate principal  disposing  of  such  business  or  assets  or  such  Subsidiary  for  the  purpose  of  financing  such   amount  or  liquidation  preference  that,  when  aggregated  with  the  principal  amount  or  acquisition or disposition);                                                                              liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then                                                                                                            outstanding  and  Incurred  (including  any  Refinancing  Indebtedness  in  respect  thereof)        (11)  Indebtedness arising from the honoring by a bank or other financial institution               pursuant to this Section 4.04(b)(16) and then outstanding, will not exceed the greater of $75  of a check, draft or similar instrument drawn against insufficient funds in the ordinary course           million and 33% of Pro Forma EBITDA for the most recently ended four full fiscal quarters  of business; provided,  however,  that  such  Indebtedness  is  extinguished  within  30  Business        for which internal financial statements of the Borrower are available immediately preceding  Days of Incurrence;                                                                                       the  date  of  determination; provided  that  any  Indebtedness  incurred  under  this  Section                                                                                                            4.04(b)(16)  may  be  refinanced  with  additional  Indebtedness  in  an  amount  equal  to  the        (12)  Indebtedness under daylight borrowing facilities incurred in  connection with                 principal  of  the  Indebtedness  so  refinanced,  plus  any  additional  amount  to  pay  premiums  any  refinancing  of  Indebtedness  (including  by  way  of  set-off  or  exchange); provided  that       (including  tender  premiums),  accrued  and  unpaid  interest,  expenses,  defeasance  costs  and  such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced               fees in connection therewith.  and  the  aggregate  amount  of  fees,  underwriting  discounts,  premiums  and  other  costs  and  expenses Incurred in connection with such refinancing, so long as any such Indebtedness is                Notwithstanding the foregoing, a Restricted Subsidiary that is not a Guarantor may not Incur  repaid within three days of the date on which such Indebtedness is Incurred;                              Indebtedness  or  issue  Disqualified  Stock  or  Preferred  Stock  under  Section  4.04(a)  and                                                                                                            Sections 4.04(b)(1), (5), (14) and (16) if the Non-Guarantor Debt Cap would be exceeded, as        (13)  Indebtedness  Incurred  pursuant  to  any  factoring,  securitizations,  receivables          determined  on  a pro  forma basis  (including  a pro  forma  application  of  the  net  proceeds  financings  or  similar  arrangements,  including  by  a  Receivables  Entity  in  a  Qualified           therefrom).  Receivables  Financing,  with  respect  to  which  recourse  to  the  Borrower  or  any  Restricted  Subsidiary  in  connection  with  such  transactions  is  limited  to  the  extent  customary  (as        (c)    For purposes of determining compliance with, and the outstanding principal amount  determined  by  the  Borrower  in  good  faith)  for  similar  transactions  in  the  applicable          of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 4.04:  jurisdictions (including Standard Securitization Undertakings and, to the extent applicable, in                                                                                                                   (1)   in the event that Indebtedness meets the criteria of more than one of the types  to any transfer by a Parent, the Borrower or any Restricted Subsidiary);                                  of Indebtedness  described  in Section 4.04(a)  and  Section 4.04(b), the Borrower, in  its sole                                                                                                            discretion, will classify, and may from time to time reclassify, such item of Indebtedness and        (14)  Indebtedness  Incurred  by  the  Borrower  or  a  Restricted  Subsidiary  or                  only be required to include the amount and type of such Indebtedness in one of the clauses of  Disqualified  Stock  of  the  Borrower  in  an  aggregate  outstanding  principal  amount  which,         Section 4.04(a) or Section 4.04(b); provided that Indebtedness Incurred (or deemed Incurred)  when taken together with the principal amount of all other Indebtedness Incurred pursuant to              on the Initial Funding Date or any Refinancing Indebtedness in respect thereof under Section  this  Section  4.04(b)(14)  and  then  outstanding,  will  not  exceed  100%  of  the  Net  Cash          4.04(b)(1) cannot be reclassified;  Proceeds received by the Borrower  and the Restricted Subsidiaries from the issuance or sale                                                                                4                                                                                                          5                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                                  (2)   subject  to  clause  (1)  above,  all  Indebtedness  (x)  outstanding  on  the  Closing       currency  exchange  rate  in  effect  on  the  date  of  such  refinancing,  such  dollar-denominated  Date  under  the  Initial  Term  Loan  Facility  shall  be  deemed  Incurred  on  the  Closing  Date      restriction shall be deemed not to have been exceeded so long as the principal amount of such  under Section 4.04(b)(1) and not Section 4.04(a) or Section 4.04(b)(4)(b);                                Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being                                                                                                            refinanced  plus  any  amount  to  pay  premiums  (including  tender  premiums),  accrued  and        (3)                                                                                                 unpaid interest, expenses, defeasance costs and fees in  connection therewith; (b) the Dollar  acceptances or other similar instruments relating  to, or Liens securing,  Indebtedness that is           Equivalent  of  the  principal  amount  of  any  such  Indebtedness  outstanding  on  the  Initial  otherwise included in the determination of a particular amount of Indebtedness shall not be               Funding Date shall be calculated based on the relevant currency exchange rate in effect on  included;                                                                                                 the Initial Funding Date; and (c) if any such Indebtedness that is denominated in a currency                                                                                                            other than dollars is subject to a Currency Agreement with respect to the currency in which        (4)                                                               or  other                         such  Indebtedness  is  denominated  covering  principal  amount  and  interest  payable  on  such  similar  instruments  are  Incurred  pursuant  to  any  Credit  Facility  and  are  being  treated  as    Indebtedness, the amount of such Indebtedness will be the Dollar Equivalent of the principal  Incurred  pursuant  to  Section  4.04(b)(1),  Section  4.04(b)(8),  Section  4.04(b)(14)  or  Section     payment required to be made under such Currency Agreement plus the Dollar Equivalent of  4.04(b)(16) or Section 4.04(a) and the letters of credit, bankers                                         any  premium  which  is  at  such  time  due  and  payable  but  is  not  covered  by  such  Currency  instruments relate to other Indebtedness, then such other Indebtedness shall not be included;             Agreement.         (5)   the principal amount of any Disqualified Stock of the Borrower or a Restricted                (g)    For purposes of determining compliance with the Consolidated Net Leverage Ratio or  Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the            the Consolidated Net Senior Secured Leverage Ratio on the Incurrence of Indebtedness, the  maximum  mandatory  redemption  or  repurchase  price  (not  including,  in  either  case,  any           Dollar Equivalent of the principal amount of Indebtedness denominated in another currency  redemption or repurchase premium) or the liquidation preference thereof;                                  shall be calculated based on the relevant currency  exchange rate in  effect on the date such                                                                                                            Indebtedness  was  Incurred,  or  at  the  option  of  the  Borrower,  the  date  first  committed;        (6)   Indebtedness permitted  by this  Section  4.04 need  not  be  permitted solely  by            provided  that  (a)  if  such  Indebtedness  is  Incurred  to  refinance  other  Indebtedness  reference to one provision permitting such Indebtedness but may be permitted in part by one               denominated  in  a  currency  other  than  dollars,  and  such  refinancing  would  cause  the  such provision and in part by one or more other provisions of this Section 4.04 permitting                applicable dollar-denominated restriction to be exceeded if calculated at the relevant currency  such Indebtedness; and                                                                                    exchange rate in effect on the date of such refinancing, such dollar-denominated restriction                                                                                                            shall  be  deemed  not  to  have  been  exceeded  so  long  as  the  principal  amount  of  such        (7)   the  amount  of  Indebtedness  issued  at  a  price  that  is  less  than  the  principal                                                                                                            Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being  amount thereof will be equal to the amount of the liability in respect thereof determined on                                                                                                            refinanced  plus  any  amount  to  pay  premiums  (including  tender  premiums),  accrued  and  the basis of GAAP.                                                                                                            unpaid  interest,  expenses,  defeasance  costs  and  fees  in  connection  therewith;  and  (b)  the  (d)   Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion           Dollar Equivalent of the principal amount of any such Indebtedness outstanding on the Initial  or amortization of original issue discount, the payment of interest in the form of additional             Funding Date shall be calculated based on the relevant currency exchange rate in effect on  Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or             the Initial Funding Date.  Disqualified  Stock  or  the  reclassification  of  commitments  or  obligations  not  treated  as                                                                                                            (h)    In addition, for purposes of calculating the Consolidated Net Senior Secured Leverage  Indebtedness  due  to  a  change  in  GAAP  will  not  be  deemed  to  be  an  Incurrence  of                                                                                                            Ratio or the Consolidated Net Leverage Ratio to test compliance with any covenant in this  Indebtedness for purposes of this Section 4.04.  The amount of any Indebtedness outstanding                                                                                                            Agreement, in determining the amount of Indebtedness outstanding in dollars on any date of  as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued                                                                                                            determination, with respect to any Indebtedness denominated in a currency other than dollars  with original issue discount and (b) the principal amount, or liquidation preference thereof, in                                                                                                                 Foreign Currency    the case of any other Indebtedness.                                                                                                                   (1)   subject  to  a  currency  swap  arrangement  or  contract,  the  aggregate  principal  (e)   If  at  any  time  an  Unrestricted  Subsidiary  becomes  a  Restricted  Subsidiary,  any                                                                                                            amount of such Foreign Currency Indebtedness on any such date of determination shall be the  Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as                                                                                                            dollar amount of the aggregate principal amount to be paid by the Borrower or a Restricted  of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under                                                                                                            Subsidiary on the maturity date of such currency swap arrangement or contract pursuant to  this Section 4.04, the Borrower shall be in Default of this Section 4.04).                                                                                                            the terms thereof; or   (f)   For purposes of determining compliance with any dollar-denominated restriction on                                                                                                                   (2)   subject  to  a  currency  forward  arrangement,  forward  accretion  curve  or  the Incurrence of Indebtedness, the Dollar Equivalent of the principal amount of Indebtedness                                                                                                            contract,  the  aggregate  principal  amount  of  such  Foreign  Currency  Indebtedness  shall  be  denominated in another currency shall be calculated based on the relevant currency exchange                                                                                                            converted into dollars at the exchange rate specified under the terms of such currency forward  rate in effect on the date such Indebtedness was Incurred or at the option of the Borrower, on                                                                                                            arrangement,  forward  accretion  curve  or  contract  as  applicable  to  such  Foreign  Currency  the date first committed; provided that (a) if such Indebtedness is Incurred to refinance other                                                                                                            Indebtedness on such date of determination.  Indebtedness denominated in a currency other than dollars, and such refinancing would cause  the  applicable  dollar-denominated  restriction  to  be  exceeded  if  calculated  at  the  relevant                                                                                6                                                                                                          7                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            (i)   For the avoidance of doubt, notwithstanding a Group member entering into any such                          (3)   make any principal payment on, or purchase, repurchase, redeem, defease or  arrangement  or  contract  hedging  foreign  exchange  exposure  of  any  Foreign  Currency               otherwise  acquire  or  retire  for  value,  prior  to  scheduled  maturity,  scheduled  repayment  or  Indebtedness,  for  the  purposes  of  calculating  the  Consolidated  Net  Leverage  Ratio  or  the      scheduled  sinking  fund  payment,  any  Subordinated  Indebtedness  (other  than  (a)  any  such  Consolidated  Net  Senior  Secured  Leverage  Ratio,  the  aggregate  principal  amount  of               payment, purchase, repurchase, redemption, defeasance or other acquisition or retirement or  Indebtedness  subject  to  any  such  arrangement  or  contract  shall  be  attributed  to  the  total    in anticipation of satisfying a sinking fund obligation, principal installment or final maturity,  Indebtedness of the Person that originally Incurred such Indebtedness.                                    in each case, due within one year of the date of payment, purchase, repurchase, redemption,                                                                                                            defeasance or other acquisition or retirement; and (b) any Indebtedness Incurred pursuant to  (j)   Notwithstanding any other provision of this Section 4.04, the maximum amount of                     Section 4.04(b)(3) hereof);  Indebtedness that the Borrower or a Restricted Subsidiary may Incur pursuant to this Section  4.04 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate                  (4)   make  any  payment  on  or  with  respect  to,  or  purchase,  redeem,  defease  or  of currencies.                                                                                            otherwise acquire or retire for value any Subordinated Shareholder Funding (other than the                                                                                                            capitalization  of  interest  in  the  form  of  additional  Subordinated  Shareholder  Funding  and  (k)   Neither the Borrower nor any Guarantor will incur any Indebtedness (including any                   other than in exchange for Capital Stock of the Borrower (other than Disqualified Stock) or  Indebtedness  permitted  to  be  Incurred  pursuant  to  Section  4.04(b))  that  is  contractually       for options, warrants or other rights to purchase such Capital Stock of the Borrower (other  subordinated  in  right  of  payment  to  any  other  Indebtedness  of  the  Borrower  or  such           than Disqualified Stock)); or  Guarantor unless such Indebtedness is also contractually subordinated in right of payment to  the Loans and the applicable Loan Guarantee on substantially identical terms (as determined                      (5)   make any Restricted Investment in any Person;  in good faith by the Borrower); provided, however, that no Indebtedness will be deemed to be  contractually subordinated in right of payment to any other Indebtedness of the Borrower or               (any  such  dividend,  distribution,  payment,  purchase,  redemption,  repurchase,  defeasance,  any Guarantor solely by virtue of being unsecured, by virtue of being secured with different              other acquisition, retirement or Restricted Investment referred to in clauses (1) through (5) of  collateral,  by  virtue  of  being  secured  on  a  junior  priority  basis,  by  virtue  of  not  being                                             Restricted  Payment  if  at  the  time  the                                                                                                            Borrower or a Restricted Subsidiary makes such Restricted Payment:   waterfall  or other payment-ordering  provisions  affecting  different  tranches  of  Indebtedness  under Credit Facilities.                                                                                               (a) a Default or Event of Default (or in the case of a Restricted Investment, an                                                                                                                            Event  of  Default  under  Section  7.01(a)  or  Section  7.01(g)  of  the  Credit  Section 4.05. Limitation on Restricted Payments                                                                           Agreement)  shall  have  occurred  and  be  continuing  (or  would  result                                                                                                                            immediately thereafter therefrom);   (a)   The  Borrower  will  not,  and  will  not  permit  any  of  its  Restricted  Subsidiaries  to,  directly or indirectly:                                                                                                                                                                                                            (b) except in the case of a Restricted Investment, if such Restricted Payment is        (1)   declare  or  pay  any  dividend  or  make  any  other  payment  or  distribution  on                          made in reliance on clause (c)(i) below, the Borrower is not able to Incur                                                                                                                            an  additional  $1.00  of  Indebtedness  pursuant  to  Section  4.04(a)  hereof  (including, without limitation, any payment in connection with any merger or consolidation                                after giving effect, on a pro forma basis, to such Restricted Payment; or   involving the  Borrower or any Restricted Subsidiary) except:                                                                                                                         (c) the aggregate amount of such Restricted Payment and all other Restricted              (a) dividends or distributions payable in Capital Stock of the Borrower  (other                               Payments  made  by  the  Borrower  and  the  Restricted  Subsidiaries                 than Disqualified Stock) or in options, warrants or other rights to purchase                               subsequent to the Closing Date (and not returned or rescinded) (including                 such Capital Stock of the Borrower  (other than Disqualified Stock) or in                                  Permitted  Payments  permitted  below  by  Section  4.05(b)(5)  (without                 Subordinated Shareholder Funding; and                                                                      duplication  of  amounts  paid  pursuant  to  any  other  clause  of  Section                                                                                                                            4.05(b)), Section 4.05(b)(6), Section 4.05(b)(10), and Section 4.05(b)(20)              (b) dividends  or  distributions  payable  to  the  Borrower  or  a  Restricted                               (to  the  extent  it  relates  to  Restricted  Payments  permitted  by  Section                 Subsidiary (and, in the case of any such Restricted Subsidiary making such                                 4.05(b)(5)  or  Section  4.05(b)(10)),  but  excluding  all  other  Restricted                 dividend  or  distribution,  to  holders  of  its  Capital  Stock  other  than  the                        Payments permitted by Section 4.05(b)) would exceed the sum of (without                 Borrower  or  another  Restricted  Subsidiary  on  no  more  than  a  pro  rata                            duplication):                  basis, measured by value);                                                                                                                                     (i)    an  amount  equal  to  50%  of  the  Consolidated  Net        (2)   purchase,  redeem,  retire  or  otherwise  acquire  for  value  (including,  without                             Income for the period beginning on the first day of the first full fiscal  limitation,  any  payment  in  connection  with  any  merger  or  consolidation  involving  the                              quarter  commencing  prior  to  the  Closing  Date  to  the  end  of  the  Borrower, any Capital Stock of the Borrower or any direct or indirect Parent of the Borrower   held by Persons other than the Borrower or a Restricted Subsidiary (other than in exchange                                   date  of  such  Restricted  Payment  for  which  internal  consolidated  for Capital Stock of the Borrower (other than Disqualified Stock));                                                          financial  statements  of  the  Borrower  are  available,  taken  as  a  single                                                                                8                                                                                                          9                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                                               accounting  period  or,  in  the  case  such  Consolidated  Net  Income  for                              by way of dividend, distribution, interest payments or returns of capital)                     such period is a deficit, minus 100% of such deficit;                                                     to the Borrower or any Restricted Subsidiary, which amount, in each                                                                                                                               case under this clause (iv), constituted a Restricted Payment made after                           (ii)  100% of the aggregate Net Cash Proceeds, and the fair                                         the Closing Date; provided, however, that no amount will be included                     market  value  (as  determined  in  accordance  with  Section  4.05(c))  of                               in  Consolidated  EBITDA  for  purposes  of  Section  4.05(a)(c)(i) to  the                     property  or  assets or marketable  securities, received  by the Borrower                     from  the  issue  or  sale  of  its  Capital  Stock  (other  than  Disqualified                           4.05(a)(c)(iv);                      Stock  or  Designated  Preference  Shares)  or  Subordinated  Shareholder                     Funding subsequent to the Closing Date or otherwise contributed to the                                          (v)    the  amount  of  the  cash  and  the  fair  market  value  (as                     equity  (other  than  through  the  issuance  of  Disqualified  Stock  or                                 determined in  accordance with  Section 4.05(c))  of property, assets  or                     Designated  Preference  Shares)  of  the  Borrower  subsequent  to  the                                   marketable  securities  received  by  the  Borrower  or  any  Restricted                     Closing Date (other than (x) Net Cash Proceeds or property or assets or                                   Subsidiary after the Closing Date in connection with:                      marketable securities received from an issuance or sale of such Capital                     Stock to the Borrower or a Restricted Subsidiary or an employee stock                                                  (A)   the  sale  or  other  disposition  (other  than  to  the                     ownership plan or trust established by the Borrower or any Subsidiary                                           Borrower  or  a  Restricted  Subsidiary  or  an  employee  stock                     of the Borrower for the benefit of its employees to the extent funded by                                        ownership  plan  or  trust  established  by  the  Borrower  or  any                     the Borrower or any Restricted Subsidiary, (y) Net Cash Proceeds or                                             Subsidiary of the Borrower for the benefit of its employees to                     property  or  assets  or  marketable  securities  to  the  extent  that  any                                    the extent funded by the Borrower or any Restricted Subsidiary)                     Restricted Payment has been made from such proceeds in reliance on                                              of Capital Stock of an Unrestricted Subsidiary of the Borrower;                     Section  4.05(b)(6),  and  (z)  Excluded  Contributions  and  the  Equity                                       and                      Contribution);                                                                                                                                             (B)   any  dividend  or  distribution  made  by  an                           (iii)  100% of the aggregate Net Cash Proceeds, and the fair                                              Unrestricted  Subsidiary  to  the  Borrower  or  a  Restricted                     market  value  (as  determined  in  accordance  with  Section  4.05(c))  of                                     Subsidiary;                      property  or  assets or marketable  securities, received  by the  Borrower                     or any  Restricted  Subsidiary  from  the  issuance  or  sale (other  than  to                                  provided, however,  that  no  amount  will  be  included  in                     the  Borrower  or  a  Restricted  Subsidiary  or  an  employee  stock                                     Consolidated  EBITDA  for  purposes  of  Section  4.05(a)(c)(i)  to  the                     ownership plan or trust established by the Borrower or any Subsidiary                     of the Borrower for the benefit of its employees to the extent funded by                                  4.05(a)(c)(v); and                      the  Borrower  or  any  Restricted  Subsidiary)  by  the  Borrower  or  any                     Restricted  Subsidiary  subsequent  to  the  Closing  Date  of  any                                             (vi)   in  the  case  of  the  designation  of  an  Unrestricted                     Indebtedness  that  has  been  converted  into  or  exchanged  for  Capital                               Subsidiary  as  a  Restricted  Subsidiary  or  all  of  the  assets  of  such                     Stock  of  the  Borrower  (other  than  Disqualified  Stock  or  Designated                               Unrestricted Subsidiary are transferred to the Borrower or a Restricted                     Preference  Shares)  or  Subordinated  Shareholder  Funding  (plus  the                                   Subsidiary,  or  the  Unrestricted  Subsidiary  is  merged  or  consolidated                     amount  of  any  cash,  and  the  fair  market  value  (as  determined  in                                into  the  Borrower  or  a  Restricted  Subsidiary,  in  each  case,  after  the                     accordance  with  Section  4.05(c))  of  property  or  assets  or  marketable                             Closing  Date,  100%  of  such  amount  received  in  cash  and  the  fair                     securities, received by the Borrower or any Restricted Subsidiary upon                                    market  value  (as  determined  in  accordance  with  Section  4.05(c))  of                     such conversion or exchange) but excluding (x) Net Cash Proceeds or                                       any property, assets or marketable securities received by the Borrower                     property  or  assets  or  marketable  securities  to  the  extent  that  any                              or  a  Restricted  Subsidiary  in  respect  of  such  redesignation,  merger,                     Restricted Payment has been made from such proceeds in reliance on                                        consolidation  or  transfer  of  assets,  excluding  any  amount  of  any                     Section  4.05(b)(6),  and  (y)  Excluded  Contributions  and  the  Equity                                 Investment in such Unrestricted Subsidiary pursuant to clause 18(b) of                     Contribution;                                                                                                                                4.05(a)(c)(vi);  provided  however,  that  no  amount  will  be  included  in                           (iv)  the  amount  equal  to  the  net  reduction  in  Restricted                                   Consolidated  EBITDA  for  purposes  of  Section  4.05(a)(c)(i)  to  the                     Investments  made  by  the  Borrower  or  any  of  the  Restricted                     Subsidiaries  resulting  from  repurchases,  redemptions  or  other                                       4.05(a)(c)(vi); provided further,  however,  that  such  amount  shall  not                     acquisitions or retirements of any such Restricted Investment, proceeds                                   exceed  the  amount  included  in  the  calculation  of  the  amount  of                     realized upon the sale or other disposition to a Person other than the                                    Restricted  Payments  referred  to  in  the  first  sentence  of  this  Section                     Borrower or a Restricted Subsidiary of any such Restricted Investment,                                    4.05(a)(c).                     repayments of loans or advances or other transfers of assets (including                                                                                                                                                                                           10                                                                                                         11                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                                                                                                                                                   (b) to  the  extent  required  by  the  agreement  governing  such  Subordinated  (b)                                                                   Permitted                                           Indebtedness  (or  such  Indebtedness  of  any  Parent),  following  the  Payments                                                                                                                  occurrence  of  a  Change  of  Control  (or  other  similar  event  described         (1)   any  Restricted  Payment  made  in  exchange  (including  any  such  exchange                                 have  been  terminated  and  all  Obligations  (other  than  (A)  contingent  pursuant to the exercise of a conversion right or privilege in connection with which cash is                              indemnification obligations as to which no claim has been asserted and (B)  paid in lieu of the issuance of fractional shares) for, or out of the Net Cash Proceeds within                            obligations and liabilities under Treasury Services Agreements and Swap  120  days  after  the  sale  (other  than  to  the  Borrower  or  a  Subsidiary  of  the  Borrower  )  of,                Contracts not due and payable) shall have been paid in full and all Letters  Capital Stock of the Borrower (other than Disqualified Stock or Designated Preference Shares                              of Credit (other than Letters of Credit that are Cash Collateralized or back- or through an Excluded Contribution), Subordinated Shareholder Funding or within 120 days                                 stopped  by  a  letter  of  credit  in  form,  amount  and  substance  reasonably  after the contribution to the equity (other than through the issuance of Disqualified Stock or                            satisfactory  to  the  applicable  L/C  Issuer)  shall  have  expired  or  been  Designated Preference Shares or through an Excluded Contribution) of the Borrower;                                        terminated  (or  any  Event  of  Default  under  Section  7.01(i)  of  the  Credit                                                                                                                            Agreement  shall  have  been  waived),  prior  to  purchasing,  repurchasing,        (2)   any  purchase,  repurchase,  redemption,  defeasance  or  other  acquisition  or                              redeeming, defeasing or otherwise acquiring or retiring such Subordinated  retirement of Subordinated Indebtedness of the Borrower or a Subsidiary Guarantor made by                                 Indebtedness  (or  making  any  such  loans,  advances,  dividends  or  other  exchange  for,  or  out  of  the  Net  Cash  Proceeds  within  120  days  after  the  Incurrence  of,                     distributions  to  any  Parent)  and  (ii)  at  a  purchase  price  not  greater  than  Refinancing Indebtedness permitted to be Incurred pursuant to Section 4.04;                                               101% of the principal amount of such Subordinated Indebtedness or such                                                                                                                            Indebtedness  of  any  Parent  plus  accrued  and  unpaid  interest  (and  costs,        (3)   (a) any  purchase,  repurchase,  redemption,  defeasance or other  acquisition or                             expenses and fees incurred in connection therewith); and  retirement of Preferred Stock of the Borrower or a Restricted Subsidiary made by exchange  for or out of the Net Cash Proceeds within 120 days after the sale of Preferred Stock of the                           (c) consisting  of  Acquired  Indebtedness  (other  than  Indebtedness  Incurred  Borrower or a Restricted Subsidiary, and (b) any purchase, repurchase, redemption, defeasance                             (A) to provide all or any portion of the funds utilized to consummate the  or  other  acquisition  or  retirement  of  Disqualified  Stock  of  the  Borrower  or  a  Restricted                     transaction or series of related transactions pursuant to which such Person  Subsidiary made by exchange for or out of the Net Cash Proceeds within 120 days after the sale                            became  a  Restricted  Subsidiary  or  was  otherwise  acquired  by  the  of Disqualified Stock of the Borrower or a Restricted Subsidiary, as the case may be, that, in                            Borrower or a Restricted Subsidiary or (B) otherwise in connection with  each case under (a) and (b), is permitted to be Incurred pursuant to Section 4.04, and that in                            or in contemplation of such acquisition).   each case (other than such sale of Preferred Stock of the Borrower that is not Disqualified  Stock) constitutes Refinancing Indebtedness;                                                                     (5)   any dividends paid within 60 days after the date of declaration if at such date                                                                                                            of declaration such dividend would have complied with this Section 4.05;         (4)   any  purchase,  repurchase,  redemption,  defeasance  or  other  acquisition  or  retirement  of  Subordinated  Indebtedness  (or  any  loans,  advances,  dividends  or  other                    (6)   the  purchase,  repurchase,  redemption,  defeasance  or  other  acquisition,  distributions  by the Borrower to  any Parent to permit  such  Parent  to purchase,  repurchase,          cancellation  or  retirement  for  value  of  Capital  Stock  of  the  Borrower,  any  Restricted  redeem, defease or otherwise acquire or retire Indebtedness of any Parent so long as the Net              Subsidiary or any Parent (including any options, warrants or other rights in respect thereof)  Cash Proceeds (or portion thereof) of such Indebtedness has been received by the Borrower                 and loans, advances, dividends or distributions by the Borrower to any Parent to permit any  from  the  issue  or  sale  of  its  Capital  Stock  (other  than  Disqualified  Stock  or  Designated    Parent  to  purchase,  repurchase,  redeem,  defease  or  otherwise  acquire,  cancel  or  retire  for  Preference Shares) or Subordinated Shareholder Funding subsequent to the Closing Date or                  value Capital Stock of the Borrower, any Restricted Subsidiary or any Parent (including any  otherwise contributed to the equity (other than through the issuance of Disqualified Stock or             options,  warrants  or  other  rights  in  respect  thereof),  or  payments  to  purchase,  repurchase,  Designated Preference Shares) of the Borrower subsequent to the Closing Date):                            redeem,  defease  or  otherwise  acquire,  cancel  or  retire  for  value  Capital  Stock  of  the                                                                                                            Borrower, any Restricted Subsidiary or any Parent (including any options, warrants or other              (a) (i) from Net Available Cash to the extent permitted under Section 4.08 but                rights  in  respect  thereof),  in  each  case  from  Management  Investors;  provided that  such                 only  if  the  Borrower  shall  have  first  complied  with  its  obligations  to          payments,  loans,  advances,  dividends  or  distributions  do  not  exceed  an  amount  (net  of                 prepay  all  Term  Loans  to  the  extent  required  by  Section  2.13(a)  of  the         repayments if any such loans or advances equal to the greater of $20 million and 10% of Pro                 Credit Agreement, prior to purchasing, repurchasing, redeeming, defeasing                  Forma  EBITDA  for  the  most  recently  ended  four  full  fiscal  quarters  for  which  internal                 or  otherwise  acquiring  or  retiring  such  Subordinated  Indebtedness  (or              financial  statements  of  the  Borrower  are  available  immediately  preceding  the  date  of                 making any such loans, advances, dividends or other distributions to any                   determination  (which,  subsequent  to  the  consummation  of  an  underwritten  public  Equity                 Parent) and (ii) at a purchase price not greater than 100% of the principal                Offering  by  the  Borrower  or  any  Parent,  shall  increase  to  the  greater  of  $40  million  and                 amount  of  such  Subordinated  Indebtedness  (or  such  Indebtedness  of any              20.0% of Pro Forma EBITDA for the most recently ended four full fiscal quarters for which                 Parent)  plus  accrued  and  unpaid  interest  (and  costs,  expenses  and  fees           internal financial statements of the  Borrower are available immediately preceding the date of                 incurred in connection therewith);                                                         determination); provided further, however, that such payments, loans, advances, dividends or                                                                                                            distributions  in  any  such  succeeding  calendar  year  do  not  exceed  an  amount  (net  of                                                                                12                                                                                                         13                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            repayments of any such loans or advances) equal to (1) the greater of $35 million and 15.0%               limitation of this Section 4.05 or otherwise to facilitate any dividend or other return of capital  of Pro Forma EBITDA for the most recently ended four full fiscal quarters for which internal              to the holders of such Capital Stock (as determined in good faith by an Officer or the Board  financial  statements  of  the  Borrower  are  available  immediately  preceding  the  date  of           of Directors of the Borrower );  determination  (which,  subsequent  to  the  consummation  of  an  underwritten  public  Equity  Offering  by  the  Borrower  or  any  Parent,  shall  increase  to  the  greater  of  $55  million  and          (12)  Restricted  Payments  in  an  aggregate  amount  outstanding  at  any  time  not  to  25.0% of Pro Forma EBITDA for the most recently ended four full fiscal quarters for which                 exceed the fair market value of Excluded Contributions, or Investments in exchange for or  internal financial statements of the Borrower are available immediately preceding the date of             using as consideration Investments previously made under this Section 4.05(b)(12);  determination)  in  any  calendar  year), plus  (2)  the  Net  Cash  Proceeds  received  by  the  Borrower or the Restricted Subsidiaries since the Closing Date (including through receipt of                     (13)  payment  of  any  Receivables  Fees  and  purchases  of  Receivables  Assets  proceeds from the issuance or sale of its Capital Stock or Subordinated Shareholder Funding               pursuant to a Receivables Repurchase Obligation in connection with a Qualified Receivables  to  a  Parent)  from,  or  as  a  contribution  to  the  equity  (in  each  case  under  this  Section    Financing;  4.05(b)(6),  other than through the issuance  of  Disqualified Stock or  Designated Preference  Shares) of the Borrower from, the issuance or sale to Management Investors of Capital Stock                      (14)  dividends  or  other  distributions  of  Capital  Stock,  Indebtedness  or  other  (including  any  options,  warrants  or  other  rights  in  respect  thereof),  to  the  extent  such  Net securities of Unrestricted Subsidiaries;  Cash Proceeds are not included in any calculation under Section 4.05(a)(c)(ii);                                                                                                                   (15)  [Reserved];        (7)   the declaration and payment of dividends to holders of any class or series of                                                                                                                   (16)  the declaration and payment of dividends to holders of any class or series of  Disqualified  Stock,  or  of  any  Preferred  Stock  of  a  Restricted  Subsidiary,  Incurred  in                                                                                                            Designated  Preference  Shares  of  the  Borrower  issued  after  the  Closing  Date; provided,  accordance with the terms of Section 4.04;                                                                                                            however, that the amount of all dividends declared or paid by the Borrower  pursuant to this        (8)   purchases,  repurchases,  redemptions,  defeasances  or  other  acquisitions  or              Section 4.05(b)(16) shall not exceed the Net Cash Proceeds received by the Borrower  from  retirements of Capital Stock deemed to occur upon the exercise of stock options, warrants or              the issuance or sale of such Designated Preference Shares;  other rights in respect thereof if such Capital Stock represents a portion of the exercise price                                                                                                                   (17)  so long as no Event of Default has occurred and is continuing (or would result  thereof;                                                                                                            therefrom), any Restricted Payment to the extent that, after giving pro forma effect to any        (9)   dividends, loans, advances or distributions to any Parent or other payments by                such Restricted Payment, the Consolidated Net Leverage Ratio would be no greater than 4.00  the  Borrower  or  any  Restricted  Subsidiary  in  amounts  equal  to  (without  duplication)  the       to 1.00;   amounts required for any Parent to pay:                                                                                                                   (18)  so long as no Event of Default has occurred and is continuing (or would result              (a) any Parent Expenses of any Parent or any Related Taxes; and                               therefrom),  Restricted  Payments  in  an  aggregate  amount  outstanding  at  any  time  not  to                                                                                                            exceed  the  greater  of  $45  million  and  20%  of Pro  Forma EBITDA for  the  most  recently              (b) amounts constituting or to be used for purposes of making payments to the                 ended  four  full  fiscal  quarters  for  which  internal  financial  statements  of  the  Borrower  are                 extent  specified  in  Section  4.09(b)(2)  (with  respect  to  fees  and  expenses        available immediately preceding the date of determination;                  incurred  in  connection  with  the  transactions  described  therein),                 Section 4.09(b)(5) and Section 4.09(b)(11);                                                       (19)  Restricted  Payments  constituting  any  part  of  any  Permitted  Reorganization                                                                                                            and, in each case, fees and expenses relating thereto;         (10)  the declaration and payment by the Borrower  of, or loans, advances, dividends  or  distributions  to  any  Parent  to  pay,  dividends  on  the  common  stock  or  common  equity              (20)  Restricted Payments to finance Investments or other acquisitions by a Parent  interests  of  the  Borrower  or  any  Parent,  or  purchases,  repurchases  or  other  acquisitions  or  or  any  Affiliate  (other  than  the  Borrower  or  a  Restricted  Subsidiary)  which  would  be  retirements of common stock or common equity interests of the Borrower or any Parent, in an               otherwise permitted to be made pursuant to this Section 4.05 if made by the Borrower or a  amount  not  to  exceed  in  any  fiscal  year  the  greater  of  (a)  6%  of  the  Net  Cash  Proceeds   Restricted Subsidiary; provided, that (i) such Restricted Payment shall be made within 120  received  by  the Borrower  from a  Public Offering   or contributed to  the equity  (other than          days of the closing of such Investment or other acquisition, (ii) such Parent or Affiliate of the  through  the  issuance  of  Disqualified  Stock  or  Designated  Preference  Shares  or  through  an      Borrower shall, on or prior to the date such Restricted Payment is made or if later, promptly  Excluded Contribution) of the Borrower  or contributed as Subordinated Shareholder Funding                following  the  closing  of  the  Investment  or  the  acquisition,  cause  (1)  all  property  acquired  to  the  Borrower  and  (b)  an  aggregate  amount  per  annum  not  to  exceed  5%  of  Market           (whether assets or Capital Stock) to be contributed to the Borrower or one of its Restricted  Capitalization;                                                                                           Subsidiaries or (2) the merger, amalgamation, consolidation, or sale of the Person formed or                                                                                                            acquired into the Borrower or one of its Restricted Subsidiaries (in a manner not prohibited        (11)  payments by the Borrower or loans, advances, dividends or distributions to any                by Article V of this Annex I) in order to consummate such Investment or other acquisition,  Parent to make payments, to holders of Capital Stock of the Borrower  or any Parent in lieu of            (iii) such Parent or Affiliate of the Borrower receives no consideration or other payment in  the  issuance  of  fractional  shares  of  such  Capital  Stock; provided, however,  that  any  such      connection with such transaction except to the extent the Borrower or a Restricted Subsidiary  payment, loan, advance, dividend or distribution shall not be for the purpose of evading any              could have given such consideration or made such payment in compliance with this Section                                                                               14                                                                                                         15                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            4.05  or  Section  4.09  (without  reference  to  this  Section  4.05(b)(20))  and  (iv)  any  property   Restricted Payment (or portion thereof) or such Permitted Investment (or portion thereof) on  received  in  connection  with  such  transaction  shall  not  constitute an  Excluded  Contribution      the date of its payment or later reclassify such Restricted Payment (or portion thereof) or such  up to the amount of such Restricted Payment made under this Section 4.05(b)(20);                          Permitted Investment (or portion thereof) in any manner that complies with this Section 4.05.         (21)  any  payments  in  cash  or  in  kind  relating  to  the  settlement  of  any  future,        Section 4.06. Limitation on Liens  forward or other derivative contract entered into for non-speculative purposes;                                                                                                             (a)    The  Borrower  will  not,  and  will  not  permit  any  of  its  Restricted  Subsidiaries  to,        (22)  the declaration and payment of dividends or distributions by the Borrower to,                 directly or indirectly, create, Incur or suffer to exist any Lien upon any of their property or  or the making of loans to, a Parent in  amounts required for  a Parent to pay  or cause to be             assets (including Capital Stock of a Restricted Subsidiary), whether owned on the Effective  paid,  in  each  case  without  duplication,  fees  and  expenses  related  to  any  equity  or  debt     Date or acquired after that date, or any interest therein or any income or profits therefrom,  offering (whether or not successful) of such Parent;                                                                                                       Initial Lien                                                                                                           of any property or asset that does not constitute Collateral, (i) Permitted Liens or (ii) Liens on        (23)  after the Closing Date, any distribution of net cash proceeds from any sales or               assets  that  are  not  Permitted  Liens  if  the  Obligations  (or  a  Loan  Guarantee  in  the  case  of   dispositions of assets or any distribution of assets in connection with the Real Estate Portfolio         Liens of a Guarantor) are directly secured equally and ratably with, or prior to, in the case of  Transfer  and  the  SFS  Business  Transfer; provided  that:  (i)  no  Default  or  Event  of  Default    Liens  with  respect  to  Subordinated  Indebtedness,  the  Indebtedness  secured  by  such  Initial  exists and is continuing, (ii)(x) on a pro forma basis the Consolidated Net Leverage Ratio is             Lien for so long as  such  Indebtedness  is so secured and (b)  in the  case  of any property or  no greater than 5.75 to 1.00 (provided that, if on a pro forma basis for each such distribution,          assets that constitutes Collateral, Permitted Collateral Liens.  the Consolidated Net Leverage Ratio is higher than 5.75 to 1.00, the Borrower shall prepay  sufficient Term  Loans to ensure that the Consolidated Net Leverage Ratio, on a pro forma                 (b)    Any such Lien created in favor of the Secured Parties pursuant to Section 4.06(a)(ii)  basis for such distribution and prepayment becomes no greater than 5.75 to 1.00) and (y) the              will  be  automatically  and  unconditionally  released  and  discharged  upon  (i)  the  release  and  aggregate Pro Forma EBITDA generated by the assets distributed in connection with the Real                discharge of the Initial Lien to which it relates, or (ii) as otherwise set forth under Section  Estate Portfolio Transfer accounts for no greater than 25.0% of Pro Forma EBITDA, in each                 9.20 of the Credit Agreement.  case,  for  the  most  recently  ended  four  full  fiscal  quarters  for  which  internal  financial  statements of the Borrower are available immediately preceding the date of determination and              (c)    For purposes of determining compliance with this Section 4.06, (x) a Lien need not to  (iii)  the  Borrower  shall  use  its  commercially  reasonable  efforts  to  consummate  any  such       be  Incurred  solely  by  reference  to  one  category  of  Permitted  Liens  or  Permitted  Collateral  distribution on or prior to the nine-month anniversary of the Closing Date; and                           Liens,  as  applicable,  but  may  be  Incurred  under  any  combination  of  such  categories                                                                                                            (including in part under one such category and in part under any other such category and (y)        (24)  any  Restricted  Payments  made  in  connection  with  the  Acquisition  and  the             in  the  event  that  a  Lien  (or  any  portion  thereof)  meets  the  criteria  of  one  or more  of such  Refinancing  and  fees  and  expenses  relating  thereto  (including,  without  limitation,  any  deferred  compensation  payments  to  existing  management  of  Target  and  dividends  by  the           shall be entitled to, in its sole discretion, divide, classify or subsequently reclassify, in whole  Target that  have  a  record  date before  the Closing Date, but a payment  date  on or after  the        or in part, at any time, such Lien (or any portion thereof) in any manner that complies with  Closing Date).                                                                                                            applicable.  (c)   Except  as  otherwise  specified,  the  amount  of  all  Restricted  Payments  or  Permitted  Investments (other than  cash) shall  be the fair market value  on the  date  of such  Restricted         Section 4.07. Limitation on Restrictions on Distributions from Restricted Subsidiaries  Payment or Permitted Investment (or, at the option of the Borrower, on the date of entry into  of a commitment, contract or resolution with respect to such Restricted Payment or Permitted              (a)    The Borrower will not, and will not permit any of its Restricted Subsidiaries to, create  Investment)  of  the  asset(s)  or  securities  proposed  to  be  paid,  transferred  or  issued  by  the or  otherwise  cause  or  permit  to  exist  or  become  effective  any  consensual  encumbrance  or  Borrower  or  such  Restricted  Subsidiary,  as  the  case  may  be,  pursuant  to  such  Restricted      consensual restriction on the ability of any Restricted Subsidiary to:  Payment or Permitted Investment and without giving effect to subsequent changes in value.  The fair  market  value of any cash  Restricted  Payment  or Permitted  Investment shall be  its                 (1)   pay  dividends  or  make  any  other  distributions  in  cash  or  otherwise  on  its  face  amount,  and  the  fair  market  value  of  any  non-cash  Restricted  Payment  or  Permitted       Capital Stock to the Borrower  or any Restricted Subsidiary or pay any Indebtedness or other  Investment or any other property, assets or securities required to be valued by this Section              obligations owed to the Borrower  or any Restricted Subsidiary;  4.05  shall  be  determined  conclusively  by  an  Officer  or  the  Board  of  Directors  of  the  Borrower acting in good faith.                                                                                   (2)   make any loans or advances to the Borrower  or any Restricted Subsidiary; or    (d)   For purposes of determining compliance with this Section 4.05 and the definition of                        (3)   sell,  lease  or  transfer  any  of  its  property  or  assets  to  the  Borrower  or  any                                                                                                            Restricted Subsidiary,  Investment  meets  the  criteria  of  more  than  one  of  the  categories  described  in  clauses   (1)                                                                                                                   provided  that  (x)  the  priority  of  any  Preferred  Stock  in  receiving  dividends  or  through (24) of Section                                                                                                            liquidating distributions prior to dividends or liquidating distributions being paid on common  or  is  permitted  pursuant  to  Section  4.05(a),  the  Borrower  will  be  entitled  to  classify  such                                                                               16                                                                                                         17                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            stock and (y) the subordination of (including the application of any standstill requirements to)          which  such  refinancing  or  amendment,  supplement  or  other  modification  relates  (as  loans or advances made to the Borrower or any Restricted Subsidiary to other Indebtedness                 determined in good faith by the Borrower);  Incurred by the Borrower or any Restricted Subsidiary, or any prohibition on securing such  loans or advances made to the Borrower or any Restricted Subsidiary, shall not be deemed to                      (6)   any encumbrance or restriction:  constitute such an encumbrance or restriction.                                                                                                                         (a) that restricts in a customary manner the subletting, assignment or transfer  (b)   Section 4.07(a) will not prohibit:                                                                                  of  any  property  or  asset  that  is  subject  to  a  lease,  license  or  similar                                                                                                                            contract,  or  the  assignment  or  transfer  of  any  lease,  license  or  other        (1)   any  encumbrance  or  restriction  pursuant  to  any  Credit  Facility  or  any  other                        contract;  agreement or instrument, in each case, in effect at or entered into on the Initial Funding Date  and  any  amendments,  restatements,  modifications,  renewals,  supplements,  refundings,                             (b) contained  in  mortgages,  pledges  or  other  security  agreements  permitted  replacements  or  refinancings  of  such  agreements; provided  that  the  amendments,                                    under  this  Agreement  or  securing  Indebtedness  of  the  Borrower  or  a  restatements, modifications, renewals, supplements, refundings, replacements or refinancings                              Restricted  Subsidiary  permitted  under  this  Agreement  to  the  extent  such  are not materially more restrictive, taken as a whole, with respect to such dividend and other                            encumbrances or restrictions restrict the transfer of the property or assets  payment restrictions than those contained in those agreements on the Initial Funding Date (as                             subject to such mortgages, pledges or other security agreements;  determined in good faith by the Borrower);                                                                                                                         (c) pursuant  to  customary  provisions  restricting  dispositions  of  real  property        (2)   [Reserved];                                                                                                   interests set forth in any reciprocal easement agreements of  the Borrower                                                                                                                            or any Restricted Subsidiary; or        (3)   encumbrances  or  restrictions  existing  under  or  by  reason  of  (i)  any  Loan  Documents,  (ii)  the  Senior  Secured  Notes,  (iii)  any  Existing  Target  Notes  or  (iv)  any                     (d) pursuant to the terms of any license, authorization, concession or permit;  Intercreditor Agreement or any Additional Intercreditor Agreement, including in each case,  any  related  security  documents,  escrow  arrangements  or  other  documents  related  to  the                 (7)   any encumbrance or restriction pursuant to Purchase Money Obligations  and  foregoing;                                                                                                Capitalized  Lease  Obligations  permitted  under  this  Agreement,  in  each  case,  that  impose                                                                                                            encumbrances or restrictions on the property so acquired or any encumbrance or restriction        (4)   any  encumbrance  or restriction  pursuant  to  an  agreement  or  instrument  of  a          pursuant to a joint venture agreement that imposes restrictions on the transfer of the assets of  Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before            the joint venture;  the  date  on  which  (i)  such  Person  was  acquired  by  or  merged,  consolidated  or  otherwise  combined  with  or  into  the  Borrower  or  any  Restricted  Subsidiary,  (ii)  such  agreement  or             (8)   any encumbrance or restriction with respect to a Restricted Subsidiary (or any  instrument  is assumed by  the Borrower or  any  Restricted Subsidiary  in connection  with an            of  its  property  or  assets)  imposed  pursuant  to  an  agreement  entered  into  for  the  direct  or  acquisition of assets or (iii) such Person became a Restricted Subsidiary (in each case, other            indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of  than  Capital  Stock  or  Indebtedness  Incurred  as  consideration  in,  or  to  provide  all  or  any   such  Restricted  Subsidiary  (or  the  property  or  assets  that  are  subject  to  such  restriction)  portion of the funds utilized to consummate, the transaction or series of related transactions            pending the closing of such sale or disposition;  pursuant  to  which  such  Person  became  a  Restricted  Subsidiary  or  was  acquired  by  the  Borrower  or was merged, consolidated or otherwise combined with or into the Borrower or                         (9)   customary  provisions  in  leases,  licenses,  joint  venture  agreements  and  other  any Restricted Subsidiary) and outstanding on such date; provided that, for the purposes of               similar agreements and instruments entered into in the ordinary course of business;  this  Section 4.07(b)(4),  if  another  Person  is  the  Successor  Company  or  any  Subsidiary                                                                                                                   (10)  encumbrances or restrictions arising or existing by reason of applicable law or  thereof, any agreement or instrument of such Person or any such Subsidiary shall be deemed                                                                                                            any applicable rule, regulation, governmental license or order, or required by any regulatory  acquired  or  assumed  by  the  Borrower   or  any  Restricted  Subsidiary  when  such  Person                                                                                                            authority or stock exchange;  becomes the Successor Company;                                                                                                                   (11)  any encumbrance or restriction on cash or other deposits or net worth imposed        (5)   any  encumbrance  or  restriction  pursuant  to  an  agreement  or  instrument                                                                                                            by customers under agreements entered into in the ordinary course of business;  effecting  a  refunding,  replacement  or  refinancing  of  Indebtedness  Incurred  pursuant  to,  or  that otherwise extends, renews, refunds, refinances or replaces, an agreement or instrument                      (12)  any  encumbrance  or  restriction  pursuant  to  Currency  Agreements,  Interest  referred  to  in  Section  4.07(b)(1),  Section  4.07(b)(3)  or  Section  4.07(b)(4)  or  this  Section   Rate Agreements or Commodity Hedging Agreements;               Initial  Agreement                                      nt  or  other  modification to an agreement referred to in Section 4.07(b)(1), Section 4.07(b)(3) or Section                    (13)  any encumbrance or restriction arising pursuant to an agreement or instrument  4.07(b)(4)  or  this  Section  4.07(b)(5); provided, however,  that  the  encumbrances  and               relating to any Indebtedness permitted to be Incurred subsequent to the Initial Funding Date  restrictions  with  respect  to  such  Restricted  Subsidiary  contained  in  any  such  agreement  or    pursuant  to  Section  4.04  if  the  encumbrances  and  restrictions  contained  in  any  such  instrument are no less favorable in any material respect to the Lenders taken as a whole than             agreement  or  instrument  taken  as  a  whole  are  not  materially  less  favorable  to  the  Lenders  the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to                                                                               18                                                                                                         19                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            than  (i)  the  encumbrances  and  restrictions  contained  in  this  Agreement  or  any  Loan            prepaid,  repaid,  purchased  or  redeemed;  (ii)  unless  included  in  Section  4.08(b)(1)(i),  to  Document  on  the  Initial  Funding  Date,  or  (ii)  is  customary  in  comparable  financings  (as      prepay,  repay,  purchase  or  redeem  any  Pari  Passu  Indebtedness  of  the  Borrower  or  any  determined in good faith by the Borrower) and where, in the case of clause (ii), the Borrower             Subsidiary Guarantor, at a price of no more than 100% of the principal amount of such Pari  determines  at  the  time  of  issuance  of  such  Indebtedness  that  such  encumbrances  or             Passu  Indebtedness  plus  accrued  and  unpaid  interest  to  the  date  of  such  prepayment,  res                                                                                                       repayment,  purchase  or  redemption, provided  that  the  Borrower  or  such  Subsidiary  make  principal  or  interest  payments  under  the  Loan  Documents  as  and when  they  become          Guarantor, as applicable, shall prepay, redeem, repay or repurchase Pari Passu Indebtedness  due or (y) such encumbrances and restrictions apply only if a default occurs in respect of a              that  is  Public  Debt  pursuant  to  this  clause (ii)  only  if  the  Borrower  delivers  a  notice  of  payment or financial covenant relating to such Indebtedness;                                              prepayment  with  respect  to  the  Pari  Ratable  Share  of  the  Term  Loans  in  accordance  with                                                                                                            Section 2.13(a)(ii) within the time period specified by this Section 4.08(b)(1) and thereafter        (14)  any  encumbrance  or  restrictions  arising  in  connection  with  any  Purchase              complies  with  its  obligations  under  Section  2.13(a)(iii);  (iii)  to  prepay,  repay,  purchase  or  Money Note, other Indebtedness or a Qualified Receivables Financing that, in the good faith               redeem any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor or any  determination  of  an  Officer  or  the  Board  of  Directors  of  the  Borrower,  are  necessary  or     Indebtedness that is secured on assets which do not constitute Collateral (in each case, other  advisable to effect such Qualified Receivables Financing; or                                              than Subordinated Indebtedness of the Borrower or a Subsidiary Guarantor or Indebtedness                                                                                                            owed  to  the  Borrower  or  any  Restricted  Subsidiary);  or  (iv) to  prepay  Loans  pursuant  to        (15)  any encumbrance or restriction existing by reason of any Lien permitted under                 Section 2.12;  Section 4.06.                                                                                                                   (2)   to the extent the Borrower or such Restricted Subsidiary elects, to invest in or  Section 4.08. Limitation on Sales of Assets and Subsidiary Stock                                          purchase  or  commit  to  invest  in  or  purchase  Additional  Assets  (including  by  means  of  an                                                                                                            investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received  (a)   The Borrower will not, and will not permit any of its Restricted Subsidiaries to, make              by the Borrower or another Restricted Subsidiary)  within 365 days from the later of (i) the  any Asset Disposition unless:                                                                             date  of  such  Asset  Disposition  and  (ii)  the  receipt  of  such  Net  Available  Cash; provided,                                                                                                            however,  that  any  such  reinvestment  in  Additional  Assets  made  pursuant  to  a  definitive        (1)   the  Borrower  or  such  Restricted  Subsidiary,  as  the  case  may  be,  receives                                                                                                            binding agreement or a commitment approved by the Board of Directors of the Borrower that  consideration  (including  by  way  of  relief  from,  or  by  any  other  Person  assuming                                                                                                            is  executed  or  approved  within  such  time  will  satisfy  this  requirement,  so  long  as  such  responsibility  for,  any  liabilities,  contingent  or  otherwise)  at  least  equal  to  the  fair  market                                                                                                            investment or commitment to invest is consummated within 180 days of such 365th day;  value (such fair market value to be determined on the date of contractually agreeing to such  Asset Disposition), as determined in good faith by an Officer or the Board of Directors of the                   (3)   to make a capital expenditure within 365 days from the later of (A) the date of  Borrower,  of  the  shares  and  assets  subject  to  such  Asset  Disposition  (including,  for  the     such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however,  avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap); and                             that  any  such  capital  expenditure  made  pursuant  to  a  definitive  binding  agreement  or  a                                                                                                            commitment approved by the Board of Directors of the Borrower that is executed or approved        (2)   in any such Asset Disposition, or series of related Asset Dispositions (except                                                                                                            within such time  will satisfy this requirement, so  long as  such  investment  is consummated  to  the  extent  the  Asset  Disposition  is  a  Permitted  Asset  Swap),  at  least  75%  of  the                                                                                                            within 180 days of such 365th day; or  consideration  from  such  Asset  Disposition  or  such  series  of  related  Asset  Dispositions  (excluding  any  consideration  by  way  of  relief  from,  or  by  any  other  Person  assuming                 (4)   any combination of clauses (1)  (3) of Section 4.08(b),  responsibility for, any liabilities, contingent or otherwise, other than Indebtedness), together  with all other Asset Dispositions since the Initial Funding Date (except to the extent any such                  provided that,  pending  the  final  application  of  any  such  Net  Available  Cash  in  Asset  Disposition  was  a  Permitted  Asset  Swap)  on  a  cumulative  basis  received  by  the          accordance with clauses (1), (2), (3) or (4) of Section 4.08(b), the Borrower and the Restricted  Borrower  or  such  Restricted  Subsidiary,  as  the  case  may  be,  is  in  the  form  of  cash,  Cash  Subsidiaries  may  temporarily  reduce  Indebtedness  or  otherwise  invest  such  Net  Available  Equivalents or Temporary Cash Investments.                                                                Cash in any manner not prohibited by this Agreement.   (b)   After the receipt of Net Available Cash from an Asset Disposition, the Borrower or a                (c)    For the purposes of Section 4.08(a)(2), the following will be deemed to be cash:  Restricted  Subsidiary,  as  the  case  may  be,  may  apply  such  Net  Available  Cash  directly  or  indirectly (at the option of the Borrower or such Restricted Subsidiary):                                        (1)   the assumption by the transferee (or other extinguishment in connection with                                                                                                            the transactions relating to such Asset Dispositions) of Indebtedness and any other liabilities        (1)   within 365 days from the later of (A) the date of such Asset Disposition and                  (as  recorded  on  the  balance  sheet  of  the  Borrower  or  any  Restricted  Subsidiary  or  in  the  (B)  the  receipt  of  such  Net  Available  Cash  (i)  to  prepay,  repay,  purchase  or  redeem  any    footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such  Senior Secured Indebtedness incurred under Section 4.04(b)(1); provided, however, that, in  connection  with  any  prepayment,  repayment  or  purchase  of  Indebtedness  pursuant  to  this         balance sheet or in the footnotes thereof if such incurrence or accrual had taken place on or  Section 4.08(b)(1), the Borrower or such Restricted Subsidiary will retire such Indebtedness              prior to the date of such balance sheet, as determined in good faith by the Borrower) of the  and  will  cause  the  related  commitment  (if  any)  (except  in  the  case  of  any  revolving         Borrower  or  any  Restricted  Subsidiary  (other  than  Subordinated  Indebtedness  of  the  Indebtedness)  to  be  permanently  reduced  in  an  amount  equal  to  the  principal  amount  so                                                                               20                                                                                                         21                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            Borrower  or  a  Subsidiary  Guarantor)  and  the  release  of  the  Borrower  or  such  Restricted              (2)   in the event such Affiliate Transaction involves an aggregate value in excess  Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;             of  $35  million,  the  terms  of  such  transaction  or  series  of  related  transactions  have  been                                                                                                            approved  by  a  resolution  of  the  majority  of  the  members  of  the  Board  of  Directors  of  the        (2)   securities,  notes  or  other  obligations  received  by  the  Borrower  or  any              Borrower  resolving  that  such  transaction  complies  with  Section  4.09(a)(1).  An  Affiliate  Restricted  Subsidiary  from  the  transferee  that  are  converted  by  the  Borrower  or  such          Transaction  shall  be  deemed  to  have  satisfied  the  requirements  set  forth  in  this  Section  Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of              4.09(a)(2)  if  either  (x)  such  Affiliate  Transaction  is  approved  by  a  majority  of  the  such Asset Disposition;                                                                                   Disinterested Directors or (y)  the Borrower or any of its Restricted Subsidiaries, as the case                                                                                                            may be, delivers to the Administrative Agent a letter from an Independent Financial Advisor        (3)   Indebtedness  of  any  Restricted  Subsidiary  that  is  no  longer  a  Restricted            stating  that  such  transaction  is  fair  to  the  Borrower  or  such  Restricted  Subsidiary  from  a  Subsidiary  as  a  result  of  such  Asset  Disposition,  to  the  extent  that  the  Borrower  and  each financial  point  of  view  or  stating  that  the  terms  are  not  materially  less  favorable  to  the  other Restricted  Subsidiary  (as  applicable)  are  released  from  any  Guarantee  of  payment  of      Borrower or its relevant Restricted Subsidiary than those that would have been obtained in a  such Indebtedness in connection with such Asset Disposition;                                              comparable  transaction  by  the  Borrower  or  such  Restricted  Subsidiary  with  an  unrelated                                                                                                                                             (4)   consideration consisting of Indebtedness of the Borrower or a Guarantor (other  than  Subordinated  Indebtedness)  received  after  the  Initial  Funding  Date  from  Persons  who       (b)    The provisions of Section 4.09(a) will not apply to:  are not the Borrower or any Restricted Subsidiary; and                                                                                                                   (1)   any  Restricted  Payment  permitted to  be  made  pursuant  to  Section  4.05,  any        (5)   any  Designated  Non-Cash  Consideration  received  by  the  Borrower  or  any                Permitted Payments (other than pursuant to Section 4.05(b)(9)(b) or Section 4.05(b)(20) or  Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken             any Permitted Investment (other than as defined in sub-clauses (a)(ii) or (b) of the definition  together with all other Designated Non-Cash Consideration received pursuant to this Section               of Permitted Investments);  4.08  that  is  at  that  time  outstanding,  not  to  exceed  (at  the  time  of  the  receipt  of  such  Designated Non-                                                                                                  (2)   any issuance or sale of Capital Stock, options, other equity-related interests or  agreeing  to  such  Asset  Disposition)  the  greater  of  $55  million  and  25%  of  Pro  Forma         other securities, or other payments, awards or grants in cash, securities or otherwise pursuant  EBITDA  for  the  most  recently  ended  four  full  fiscal  quarters  for  which  internal  financial    to,  or  the  funding  of,  or  entering  into,  or  maintenance  of,  any  employment,  consulting,  statements  of  the  Borrower  are  available  immediately  preceding  the  date  of  determination       collective  bargaining  or  benefit  plan,  program,  agreement  or  arrangement,  related  trust  or  (with  the  fair  market  value  of  each  item  of  Designated  Non-Cash  Consideration  being           other  similar  agreement  and  other  compensation  arrangements,  options,  warrants  or  other  measured at the time received or, at the option of the Borrower, on the date of contractually             rights  to  purchase  Capital  Stock  of  the Borrower, any  Restricted  Subsidiary  or  any  Parent,  agreeing to the relevant Asset Disposition and without giving effect to subsequent changes in             restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation  value).                                                                                                            insurance, deferred compensation, severance, retirement, savings or similar plans, programs  Section 4.09.  Limitation on Affiliate Transactions                                                       or  arrangements)  or  indemnities  provided  on  behalf  of  officers,  employees,  directors  or                                                                                                            consultants approved by the Board of Directors of the Borrower, in each case in the ordinary  (a)   The  Borrower  will  not,  and  will  not  permit  any  of  its  Restricted  Subsidiaries  to,      course of business;  directly or  indirectly,  enter  into  or conduct  any transaction or series of related transactions  (including  the  purchase,  sale,  lease  or  exchange  of  any  property  or  the  rendering  of  any           (3)   any Management Advances and any waiver or transaction with respect thereto;  service)  with  any  Affiliate  of  the  Borrower  (any  such  transaction  or  series  of  related                   Affiliate  Transactions                                  of  the                                (4)   any transaction between or among the Borrower and any Restricted Subsidiary  greater of $20 million and 10.0% of Pro Forma EBITDA for the most recently ended four full                (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or  fiscal  quarters  for  which  internal  financial  statements  of  the  Borrower  are  available          among the Borrower, Restricted Subsidiaries or any Receivables Entity;  immediately preceding the date of determination unless:                                                                                                                   (5)   the  payment  of  reasonable  fees  and  reimbursement  of  expenses  to,  and        (1)   the terms of such Affiliate Transaction taken as a whole are not materially less              customary  indemnities  and  employee  benefit  and  pension  expenses  provided  on  behalf  of,  favorable to the Borrower or such Restricted Subsidiary, as the case may be, than those that              directors,  officers,  consultants  or  employees  of  the  Borrower,  any  Restricted  Subsidiary  or  could be obtained in a comparable transaction at the time of such transaction or the execution            any  Parent  (whether  directly  or  indirectly  and  including  through  any  Person  owned  or                                                 -length dealings with a Person who is                      controlled by any of such directors, officers or employees);  not such an Affiliate, or, if there are no comparable transactions involving non-Affiliates to  apply for comparative purposes, the transaction is otherwise on terms that, taken as a whole,                    (6)   the  Transactions  and  any  Permitted  Reorganization; provided  that  any  the Borrower has conclusively determined in good faith to be fair  to the Borrower or such                transactions with the SFS Business that are not in connection with the SFS Business Transfer  Restricted Subsidiary; and                                                                                shall not be permitted by this clause (6);                                                                                 22                                                                                                         23                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                                  (7)   execution,  delivery  and  performance  of  any  Tax  Sharing  Agreement  or  the                    (13)  any  participation  in  a  rights  offer  or  public  tender  or  exchange  offers  for  formation  and  maintenance  of  any  consolidated  group  for  tax,  accounting  or  management          securities  or  debt  instruments  issued  by  the  Borrower  or  any  of  its  Subsidiaries  that  are  purposes in the ordinary course of business;                                                                                                                price or exchange ratio, as the case                                                                                                            may be, to all holders accepting such rights, tender or exchange offer;        (8)   transactions with customers, clients, suppliers or purchasers or sellers of goods  or services and Associates, in each case in the ordinary course of business (including, without                  (14)  transactions between the Borrower or any Restricted Subsidiary and any other  limitation,  pursuant  to  joint  venture  arrangements),  which  are  fair  to  the  Borrower  or  the   Person that would constitute an Affiliate Transaction solely because a director of such other  relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or an            Person is also a director of the Borrower or any Parent; provided, however, that such director  officer  of  the  Borrower  or  the  relevant  Restricted  Subsidiary,  or  are  on  terms  no  less      abstains from voting as a director of the Borrower or such Parent, as the case may be, at any  favorable  than  those  that  could  reasonably  have  been  obtained  at  such  time  from  an           board meeting approving such transaction on any matter including such other Person;   unaffiliated party;                                                                                                                   (15)  payments to and from, and transactions with, any joint ventures entered into in        (9)   any  transaction  in  the  ordinary  course  of  business  between  or  among  the            the  ordinary  course  of  business  or  consistent  with  past  practices  (including,  without  Borrower or any Restricted Subsidiary and any Affiliate of the Borrower or an Associate or                limitation, any cash management activities related thereto);   similar entity (in each case, other than an Unrestricted Subsidiary) that would constitute an  Affiliate Transaction solely because the Borrower or a Restricted Subsidiary or any Affiliate                    (16)  commercial  contracts  (excluding  the  Permitted  Sale  and  Leaseback  of the Borrower or a Restricted Subsidiary or any Affiliate of any Permitted Holder owns an               Transactions  but  including  franchising  agreements,  office  space  and  other  real  estate  lease  equity interest in or otherwise controls such Affiliate, Associate or similar entity;                     agreements, business services related agreements or other similar arrangements) between an         (10)  (a)  issuances  or  sales  of  Capital  Stock  (other  than  Disqualified  Stock  or          length  terms  or  on  a  basis  that  senior  management  of  the  Borrower  reasonably  believes  Designated Preference Shares) of the Borrower or options, warrants or other rights to acquire             allocates costs fairly;   such Capital Stock or Subordinated Shareholder Funding; provided that the interest rate and  other financial terms of such Subordinated Shareholder Funding are approved by a majority                        (17)  (i)  transactions  with  Affiliates  solely  in  their  capacity  as  holders  of  of the members of the Board of Directors of the Borrower in their reasonable determination                Indebtedness  or  Equity  Interests  of  the  Borrower,  Parent  or  any  of  its  Subsidiaries  or  and  (b)  any  amendment,  waiver  or  other  transaction  with  respect  to  any  Subordinated           Subordinated Shareholder Debt (and payment of reasonable out-of-pocket expenses incurred  Shareholder  Funding  in  compliance  with  the  other  provisions  of  this  Agreement,  any             by such Permitted Holders in connection therewith) so long as the opportunity to participate  Intercreditor Agreement or any Additional Intercreditor Agreement, as applicable;                         in such transaction is offered by the Borrower, Parent or such Restricted Subsidiary generally                                                                                                            to  other  investors  on  the  same  or  more  favorable  terms  and  (ii)  payments  to  Permitted        (11)  without duplication in respect of payments made pursuant to the definition of                 Holders and holders of  shares of  Capital Stock of  BidFair  Management,  LP in respect  of  Parent Expenses, (a) payments by the Borrower or any Restricted Subsidiary to any Permitted               securities or Indebtedness of the Borrower or any Restricted Subsidiary contemplated in the  Holder (whether directly or indirectly, including through any Parent) of annual management,               foregoing clause (i) or that were acquired from Persons other than the Restricted Subsidiaries,  consulting, monitoring or advisory fees and related expenses in an aggregate amount not to                in each case, in accordance with the terms of such securities or Indebtedness; and  exceed an amount equal to the greater of $3 million or 1.5% of Pro Forma EBITDA for the  most  recently  ended  four  full  fiscal  quarters  for  which  internal  financial  statements  of  the        (18)  the Permitted Sale and Leaseback Transactions.  Borrower  are  available  immediately  preceding  the  date  of  calculation  per  annum  (with  unused  amounts  in  any  calendar  year  being  carried  over  to  the  succeeding  calendar  years)     Section 4.10. Reports  and; (b) customary payments by the Borrower or any Restricted Subsidiary to any Permitted  Holder (whether directly or indirectly, including through any Parent) for financial advisory,             (a)    For  so  long  as  the  Loans  are  outstanding,  the  Borrower  will  provide  to  the  financing,  underwriting  or  placement  services  or  in  respect  of  other  investment  banking        Administrative Agent the following reports:  activities,  including  in  connection  with  acquisitions  or  divestitures,  which  payments  in                                                                                                                   (1)   within 120 days after the end of the      (or, if the Borrower elects to  respect of this Section 4.09(b)(11) are approved by a majority of the Board of Directors of the                                                                                                            satisfy its obligation under this Section 4.10(a)(1) by delivering the annual reports of a Parent in  Borrower in good faith; and (c) payments of all fees and expenses related to the Transactions                                                                                                            accordance with the second succeeding paragraph of this Section 4.10(a), of such Parent) fiscal  and any Permitted Reorganization;                                                                                                            year beginning with the fiscal year ending December 31, 2019, annual reports containing the        (12)  any  transaction  effected  as  part  of  a  Qualified  Receivables  Financing,  and          following information: (a) audited consolidated balance sheet of the Borrower as of the end of  other  Investments  in  a  Receivables  Entity  consisting  of  cash  or  Securitization  Assets  and     the most recent fiscal year (and comparative information as of the end of the prior fiscal year)  execution, delivery and performance of any Servicer Agreement; in connection with the SFS                 and audited consolidated income statements and statements of cash flow of the Borrower for  Business Transfer, provided that for the avoidance of doubt any Servicer Agreement entered                the most recent fiscal year (and comparative information as of the end of the prior fiscal year)  into  by  the  Borrower  or  a  Restricted  Subsidiary  with  the  SFS  Business  other  than  in         including complete footnotes to such financial statements and the report of the independent  connection with the SFS Business Transfer shall not be permitted by this clause (12);                     auditors on the financial statements; (b) unaudited pro forma income statement information                                                                                                            and balance sheet information of the Borrower (which, for the avoidance of doubt, shall not                                                                               24                                                                                                         25                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            include the provision of a full income statement or balance sheet to the extent not reasonably            to  the  extent  available  without  unreasonable  expense  and  in  the  case pro forma  financial  available), together with explanatory footnotes, for (i) any acquisition or disposition by  the           information is not provided, the Borrower will provide, in the case of a material acquisition to  Borrower or a Restricted Subsidiary  that, individually or in the  aggregate when considered              the extent available to the Borrower or a Restricted Subsidiary without unreasonable expense,  with all other acquisitions or dispositions that have occurred since the beginning of the most            financial statements of the acquired company for the most recent fiscal year, and in the case  recently completed fiscal year as to which such annual report relates, represent greater than             of  a  material  disposition,  financial  statements  of  the  business  or  assets  comprising  the  20% of the consolidated revenues, EBITDA and/or adjusted operating cash flow, or assets of                disposition perimeter for the most recent fiscal year which, in each case, may be unaudited;  the Borrower on a pro forma consolidated basis or (ii) recapitalizations by the Borrower or a             (c) a summary operating and financial review of the unaudited financial statements, including  Restricted Subsidiary,  in each  case, that have occurred during the most recently  completed             a discussion of revenues, EBITDA and/or adjusted operating cash flow, capital expenditures,  fiscal  year  as  to  which  such  annual  report  relates  (unless  such pro  forma information has      operating cash flow and material changes in liquidity and capital resources, and a discussion  been provided in a prior report pursuant to Section 4.10(a)(2) or Section 4.10(a)(3)); provided           of material changes not in the ordinary course of business in commitments and contingencies  that such pro forma financial information will be provided only to the extent not provided in a           since  the  most  recent  report  (to  the  extent  not  previously  reported  pursuant  to  Section  previous report pursuant to Section 4.10(a)(2) or Section 4.10(a)(3) below and to the extent              4.10(a)(3) below); and (d) material recent developments (to the extent not previously reported  available  without unreasonable expense,  and in the case pro forma financial information is              pursuant to Section 4.10(a)(3) below); and   not provided, the Borrower will provide, in the case of a material acquisition, to the extent  available to the Borrower or a Restricted  Subsidiary without unreasonable expense, financial                    (3)   promptly  after  the  occurrence  of  such  event,  information  with  respect  to  (a)  statements  of  the  acquired  company  for  the  most  recent  fiscal  year,  and  in  the  case  of  a  any  change  in  the  independent  public  accountants  of  the  Borrower,  (b)  any  material  material disposition, financial statements of the business or assets comprising the disposition           acquisition, disposal, merger or similar transaction or (c) any development determined by an  perimeter  for  the  most  recent  fiscal  year  which,  in  each  case,  may  be  unaudited;  (c)  an    Officer  of  the  Borrower  to  be  material  to  the  business  of  the  Borrower  and  its  Restricted  operating and financial review of the audited financial statements, including a discussion of             Subsidiaries (taken as a whole).  the  results  of  operations,  financial  condition,  and  liquidity  and  capital  resources  of  the  Borrower,  and  a  discussion  of  material  commitments  and  contingencies  and  critical                      For the avoidance of doubt, in no event will any reports provided pursuant to this  accounting  policies;  (d)  description  of  the  business,  management  and  shareholders  of  the       Section 4.10(a):   Borrower  (to  the  extent  not  previously  reported  pursuant  to  Section  4.10(a)(2)  or  Section  4.10(a)(3)  below),  all  material  affiliate  transactions  and  a  description  of  all  material                    (1)   be required to comply with:   contractual  arrangements,  including  material  debt  instruments;  and  (e)  a  description  of                                                                                                                               (a)   Section 302, Section 404 or Section 906 of the Sarbanes-Oxley  material risk factors and material recent developments (to the extent not previously reported                                                                                                                               Act of 2002, or related Items 307 and 308 of Regulation S-K under the  pursuant to Section 4.10(a)(2) or Section 4.10(a)(3) below);                                                                                                                                             Regulation S-K          (2)   within 60 days following the end of the first three fiscal quarters in each fiscal                                                                                                                               (b)   Rule  3-10  of  Regulation  S-X  under  the  Securities  Act  year  of  the  Borrower  (or,  if  the  Borrower  elects  to  satisfy  its  obligation  under  this  Section                                                                                                                                 Regulation  S-X 4.10(a)(2)  by  delivering  the  quarterly  reports  of  a  Parent  in  accordance  with  the  second                                                                                                                               Borrower,  the  Guarantors  or  other  Subsidiaries  the  shares  of  which  succeeding paragraph of this Section 4.10(a), of such Parent) beginning with the fiscal quarter                                                                                                                               may be pledged to secure the Obligations that would be required under  ending  September 30,  2019,  all  quarterly  reports  of  the  Borrower  containing,  to  the extent                                                                                                                               Section 3-16 of Regulation S-X;  applicable:  (a)  an  unaudited  condensed  consolidated  balance  sheet  as  of  the  end  of  such  quarter  and  unaudited  condensed  consolidated  statements  of  income  and  cash  flow  for  the                          (c)  Rule  11-01  of  Regulation  S-X,  to  give  pro  forma  effect  to  the  most  recent  quarter  year-to-date  period  ending  on  the  date  of  the  unaudited  condensed                            Transactions,  or  contain  all  purchase  accounting  adjustments  relating  balance  sheet,  and  the  comparable  prior  year  periods,  together  with  condensed  footnote                            to the Transactions;   disclosure  (provided  that  if  the  Acquisition  is  completed  after  September  30,  2019,  the  Borrower  shall  provide  the  unaudited  condensed  consolidated  financial  statements  of  the                            (d)   Regulation  G  under  the  Exchange  Act  or  Item  10(e)  of  Target for such  period unless  such  financial  statements have been  filed  with the SEC); (b)                             Regulation  S-K  with  respect  to  any  non-GAAP  financial  measures  beginning  with  the  fiscal  quarter  ending  March  31,  2020,  unaudited pro forma  income                                contained therein; or  statement information and balance sheet information (which, for the avoidance of doubt, shall  not  include  the  provision  of  a  full  income  statement  or  balance  sheet  to  the  extent  not                 (2)   be required to include trade secrets and other confidential information  reasonably available), together with explanatory footnotes, for any acquisition or disposition                               that  is  competitively  sensitive  in  the  good  faith  and  reasonable  by  the  Borrower  or  a  Restricted  Subsidiary  that,  individually  or  in  the  aggregate  when                          determination of the Borrower.  considered with all other acquisitions or dispositions that have occurred since the beginning  of  the  relevant  quarter,  represent  greater  than  20%  of  the  consolidated  revenues,  EBITDA            Notwithstanding  the  foregoing,  the  Borrower  may  satisfy  its  obligations  under  and/or adjusted operating cash flow, or assets of the Borrower on a pro forma consolidated                clauses (1), (2) and (3) of Section 4.10(a) by delivering the corresponding annual, quarterly  basis  (unless  such pro  forma  information  has  been  provided  in  a  prior  report  pursuant  to     or other reports of a Parent; provided that to the extent that the Borrower is not the reporting  Section 4.10(a)(3)); provided that such pro forma financial information will be provided only             entity and material differences exist between the management, business, assets, shareholding                                                                               26                                                                                                         27                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            or results of operations or financial condition of the Borrower and such Parent, the annual and           (e)    No later than 5 Business Days after each delivery of financial statements of Borrower  quarterly  reports  shall  give  a  reasonably  detailed  description  of  such  differences  or  shall   pursuant  to  Sections  4.10(a)(1)  and  (2),  the  Borrower  will  provide  to  the  Administrative  include  the  consolidated  balance  sheet,  income  statements  and  cash  flow  statement  of  the      Agent a duly executed and completed Compliance Certificate.   Borrower and its Subsidiaries.                                                                                                             (f)    At such times as may be reasonably agreed to by the Borrower and the Administrative        The Borrower will be deemed to have furnished the reports referred to in clauses (1),               Agent, but in any event not later than 10 Business Days after the annual or quarterly financial  (2) and (3) of Section 4.10(a) if the Borrower or a Parent has filed reports containing such              statements are to be delivered pursuant to Section 4.10(a)(1) and Section 4.10(a)(2) above,   information with the SEC or posted such reports on its website.  The Administrative Agent                 beginning  with  the  quarterly  financial  statements  for  the  fiscal  quarter  ending  March  31,  shall have no responsibility to determine if and when any of the above reports have been filed            2020, the Borrower shall hold a conference call with all Lenders who choose to attend such  or posted on any website.  Delivery of the above reports to the Administrative Agent is for               conference  call  during  which  the  Borrower shall  review the financial  results  of  such  fiscal  informational purposes only and the Administrative                                                        quarter.   constitute  constructive  notice  of  any  information  contained  therein  or  determinable  from                                                                                                            Section 4.11. [Reserved.]  with any of its covenants in this Agreement (as  to which the Administrative Agent will be                                                                                                            Section 4.12. Impairment of Security Interests   (b)   All financial statement information shall be prepared in accordance with GAAP as in                 (a)    The  Borrower  shall  not,  and  shall  not  permit  any  Restricted  Subsidiary  to,  take  or  effect on the date of such report or financial statement (or otherwise on the basis of GAAP as            omit to take any action that would have the result of materially impairing the security interest  then in effect) and on a consistent basis for the periods presented; provided, however, that              with  respect  to  the  Collateral  (it  being  understood  that  subject  to  Section  4.12(b),  the  the reports set forth in clauses (1), (2) and (3) of Section 4.10(a) may in the event of a change         Incurrence  of  Permitted  Collateral  Liens  shall  under  no  circumstances  be  deemed  to  in GAAP, present earlier periods on a basis that applied to such periods.  Except as provided             materially  impair  the  security  interest  with  respect  to  the  Collateral)  for  the  benefit  of  the  in Section 4.10(c), no report need include separate financial statements for the Borrower or              Secured Parties, and the Borrower shall not, and shall not permit any Restricted Subsidiary  Subsidiaries of the Borrower or any disclosure with respect to the results of operations or any           to, grant to any Person other than the Collateral Agent (or its delegate), for the benefit of the  other financial or statistical disclosure not of a type included in the Offering Memorandum               Secured  Parties,  any  Lien  over  any  of  the  Collateral; provided, that,  subject  to  Section                                                                                                            4.12(b),  (x)  the  Borrower  and  the  Restricted  Subsidiaries  may  Incur  Permitted  Collateral  reconciliation to IFRS be required.                                                                       Liens, (y) the Security Documents and the Collateral may be discharged, amended, extended,                                                                                                            renewed,  restated,  supplemented,  released,  modified  or  replaced  in  accordance  with  this  (c)   At any time if any Subsidiary of the Borrower is an Unrestricted Subsidiary and any                 Agreement,  any  Intercreditor  Agreement,  any  Additional  Intercreditor  Agreement  or  the  such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one              applicable  Security  Documents  and  (z)  the  Borrower  and  its  Restricted  Subsidiaries  may  Subsidiary,  constitutes  a  Significant  Subsidiary,  then  the  quarterly  and  annual  financial       consummate any other transaction permitted under Article V hereunder.  information required by Section 4.10(a) will include a reasonably detailed presentation, either  on the face of the financial statements or in the footnotes thereto, of the financial condition           (b)    Notwithstanding  Section  4.12(a),  nothing  in  this  Section  4.12  shall  restrict  the  and  results  of  operations  of  the  Borrower and  its  Restricted  Subsidiaries  separate from  the    discharge  and  release  of  any  Lien  over  Collateral  in  accordance  with  this  Agreement,  the  financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower;           Security Documents, any Intercreditor Agreement or any Additional Intercreditor Agreement.  provided that with respect to the Initial Funding Date Unrestricted Subsidiaries, the requirements        Subject  to  the  foregoing,  the  Security  Documents  may  be  amended,  extended,  renewed,  of this  Section  4.10(c)  shall  be  satisfied  by  the  inclusion  of  information  relating  to  the  Initial restated, supplemented or otherwise modified or released (followed by an immediate retaking  Funding Date Unrestricted Subsidiaries substantially similar to that provided in, or included by          of  a  Lien  of  at  least  equivalent  ranking  over  the  same  assets)  to  (i)  cure  any  ambiguity,  reference in, the Offering Memorandum.                                                                    omission,  defect  or  inconsistency  therein;  (ii)  make  any  change  reasonably  necessary  or                                                                                                            desirable in the good faith determination of the Borrower in order to implement transactions  (d)   Substantially  concurrently  with  the  issuance  to  the  Administrative  Agent  of  the           permitted  under  Article  V  of  this  Annex  I;  (iii)  add  to  the  Collateral;  (iv)  provide  for  the  reports specified in clauses (1), (2) and (3) of Section 4.10(a), the Borrower shall also (a) use         release of any Lien on any properties or assets constituting Collateral from the Lien of the  its commercially reasonable efforts (i) to post copies of such reports on such website as may             Security Documents; provided that such release is followed by the substantially concurrent  be  then  maintained  by  the  Borrower  and  its  Subsidiaries  or  any Parent  or  (ii) otherwise  to   re-taking of a Lien of at least equivalent priority over the same properties and assets securing  provide  substantially  comparable  public  availability  of  such  reports  (as  determined  by  the     the  Obligations  or  any  Loan  Guarantee,  (v)  make  any  other  change  thereto  that  does  not  Borrower in good faith) or (b) to the extent the Borrower determines in good faith that such              adversely  affect  the  Secured  Parties  in  any  material  respect  (it  being  understood  that  such  reports cannot be made available in the manner described in the preceding clause (a) owing to             restatement, amendment or other modification to provide for subordinated security interests  applicable law or after the use of its commercially reasonable efforts, furnish such reports to           will be deemed not to be materially less favorable to the Secured Parties) or (vi) subject to  the Lenders and, upon their request, prospective Lenders.                                                 compliance with this Agreement, any Intercreditor Agreement or any Additional Intercreditor                                                                                                            Agreement,  as  applicable,  increase  the  amount  and  type  of  Indebtedness  covered  by  such                                                                                                            Security  Document; provided, however,  that,  contemporaneously  with  any  such  action  in                                                                                                            clauses  (ii),  (iii),  (iv)  and  (v)  of  this  Section  4.12(b),  the  Borrower  delivers  to  the                                                                               28                                                                                                         29                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            Administrative  Agent,  either  (1)  a  solvency  opinion,  in  form  and  substance  reasonably          (b)    At the direction of the Borrower and without the consent of Secured Parties, the  satisfactory to the Administrative Agent, from an independent financial advisor or appraiser              Administrative Agent and the Collateral Agent shall from time to time enter into one or  or investment  bank  of international  standing  which  confirms  the  solvency  of  the  Borrower        more amendments to any Intercreditor Agreement or Additional Intercreditor Agreement  and its Subsidiaries, taken as a whole, after giving effect to any transactions related to such           to: (1) cure any ambiguity, omission, defect or inconsistency of any such agreement, (2)  amendment, extension, renewal, restatement, supplement, modification or replacement, (2) a                increase the amount or types of Indebtedness covered by any such agreement that may be  certificate from  the  chief financial  officer  or the Board of Directors of the  relevant Person        Incurred by the Borrower or a Guarantor that is subject to any such agreement (including  which  confirms  the  solvency  of  the  Person  granting  the  Lien,  after  giving  effect  to  any     with respect to any Intercreditor Agreement or Additional Intercreditor Agreement, the  transactions  related  to  such  amendment,  extension,  renewal,  restatement,  supplement,              addition of provisions relating to new Indebtedness ranking junior in right of payment to  modification  or  replacement,  or  (3)  an  opinion  of  counsel  (subject  to  any  qualifications      the Obligations), (3) add Restricted Subsidiaries to any Intercreditor Agreement or an  customary for this type of opinion of counsel), in form and substance reasonably satisfactory             Additional  Intercreditor  Agreement,  (4)  further  secure  the  Obligations,  (5)  make  to the Administrative Agent, confirming that, after giving effect to any transactions related to          provision for equal and ratable pledges of the Collateral to secure any Incremental Loans,  such amendment, extension, renewal, restatement, supplement, modification or replacement,                 (6)  implement  any  Permitted  Liens,  (7)  amend  any  Intercreditor  Agreement  or  any  the  Lien  or  Liens  created  under  the  Security  Documents  so  amended,  extended,  renewed,         Additional Intercreditor Agreement in accordance with the terms thereof; (8) make any  restated,  supplemented,  modified  or  replaced  are  valid  Liens  not  otherwise  subject  to  any     change reasonably necessary, in the good faith determination of the Borrower in order to  limitation, imperfection or new hardening period, in equity or at law, that such Lien or Liens            implement any transaction that is subject to Article V of this Annex I; or (9) implement  were  not  otherwise  subject  to  immediately  prior  to  such  amendment,  extension,  renewal,         any  transaction in connection with  the  renewal extension, refinancing, replacement or  restatement, supplement, modification or replacement.                                                     increase of the Indebtedness that is not prohibited by this Agreement or make any other                                                                                                            change to any such agreement that does not adversely affect the Lenders in any material  (c)   In  the  event  that  the  Borrower  and  the  Restricted  Subsidiaries  comply  with  the          respect; provided that no such changes shall be permitted to the extent they affect the  requirements  of this  Section  4.11, the  Administrative  Agent  and  the  Collateral  Agent  shall      ranking of any Obligation or Loan Guarantee, enforcement of Liens over the Collateral,  (subject to customary protections and indemnifications) consent to such amendments without                the application of proceeds from the enforcement of Collateral or the release of any Loan  the need for instructions from the Secured Parties.                                                       Guarantees  or  Lien  over  Collateral  in  a  manner  than  would,  in  the  good  faith                                                                                                            determination of the Borrower, adversely affect the rights of the Lenders in any material  Section 4.13. Additional Intercreditor Agreements                                                         respect except as otherwise permitted by this Agreement, the Security Documents, any                                                                                                            Intercreditor Agreement or any Additional Intercreditor Agreement immediately prior to  (a)   At the request of the Borrower, in connection with the Incurrence by the Borrower                   such change. The Borrower shall not otherwise direct the Administrative Agent or the  or a Restricted Subsidiary of any Indebtedness that is permitted to share the Collateral                  Collateral Agent to enter into any amendment to any Intercreditor Agreement without the  pursuant to  the  definition  of  Permitted  Collateral  Liens, the  Borrower  or a  Restricted           consent of the Required Lenders, except as otherwise permitted under Section 9.08 of the  Subsidiary, the Administrative Agent and the Collateral Agent shall enter into with the                   Credit Agreement, and the Borrower may only direct the Administrative Agent and the  holders of such Indebtedness (or their duly authorized Representatives) an intercreditor                  Collateral Agent to enter into any amendment to the extent such amendment does not                Additional Intercreditor Agreement                                                          impose any personal obligations on the Administrative Agent or Collateral Agent or, in  other  modification  of  the  existing  Intercreditor  Agreement  on  substantially  the  same            the  opinion  of  the  Administrative  Agent  or  Collateral  Agent,  adversely  affect  their  terms as any Intercreditor Agreement (or, as determined in good faith by the Borrower,                    respective rights, duties, liabilities or immunities under this Agreement, any Intercreditor  terms not materially less favorable to the Lenders), including containing substantially the               Agreement or any Additional Intercreditor Agreement.  same terms with respect to release of Loan Guarantees and priority and release of the  Liens  over  Collateral  (or,  as  determined  in  good  faith  by  the  Borrower,  terms  not            (c)    In relation to any Intercreditor Agreement or Additional Intercreditor Agreement, at  materially  less  favorable  to  the  Lenders,  it  being  understood  that  such  restatement,           the request of the Borrower, the Administrative Agent (and Collateral Agent, if applicable)  amendment or other modification to provide for subordinated security interests will be                    shall  consent  on  behalf  of  the  Lenders  to  the  payment,  repayment,  purchase,  repurchase,  deemed not to be materially less favorable to the Lenders); provided that such Additional                 defeasance,  acquisition,  retirement  or  redemption  of  any  obligations  subordinated  to  the  Intercreditor Agreement will not impose any personal obligations on the Administrative                    Loans  thereby; provided,  however,  that  such  transaction  would  comply  with  Section  4.05  Agent or Collateral Agent or, in the opinion of the Administrative Agent or Collateral                    hereof.  Agent, as applicable, adversely affect the rights, duties, liabilities or immunities of the  Administrative  Agent  or  Collateral  Agent  under  this  Agreement  or  any  Intercreditor              (d)    Each Lender shall be deemed to have agreed to and accepted the terms and conditions  Agreement.  For  the  avoidance  of  doubt,  subject  to  the  first  sentence  of  this  Section         of  any  Intercreditor  Agreement  or  any  Additional  Intercreditor  Agreement  (whether  then  4.12(a) and Section 4.12(b), any such Additional Intercreditor Agreement may provide                      entered into or entered into in the future pursuant to the provisions described herein), and to  for pari passu or subordinated security interests in respect of any such Indebtedness (to                 have  directed  the  Administrative  Agent  and  the  Collateral  Agent  to  enter  into  any  the  extent  such  Indebtedness  is  permitted  to  share  the  Collateral  pursuant  to  the             Intercreditor Agreement and any such Additional Intercreditor Agreement.  definition of Permitted Collateral Lien).                                                                                                            Section 4.14. 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                                                                                                                                                                                                  The Borrower will not, and will not permit any of its Restricted Subsidiaries to,                   Covenant), as applicable, or testing baskets set forth in this Annex I of the Credit Agreement  engage in any business other than a Similar Business, except to such extent as would not                  (including baskets measured as a percentage of Pro Forma EBITDA) in connection with (x)  be material to the Borrower and the Restricted Subsidiaries, taken as a whole.                            the Incurrence of any Indebtedness or (y) the Incurrence of any Lien, the Borrower may elect,                                                                                                            in its sole discretion, to treat all or any portion of the committed amount of any Indebtedness  Section 4.15. Additional Guarantors                                                                                                            is to be Incurred (or any commitment in respect thereof) or secured by such Lien, as the case  (a)   [Reserved].                                                                                         may be (any such amount elected until revo                   Elected Amount                                                                                                           as being Incurred as of such election date and (i) any subsequent borrowing or re-borrowing  (b)   Loan  Guarantees  existing  on  or  granted  after  the  Effective  Date  pursuant  to                                                                                                            of Indebtedness under such commitment (so long as the total amount under such  Section 5.14 of the Credit Agreement shall be released as set forth in Section 12 of the                                                                                                            Indebtedness does not exceed the Elected Amount) shall not be deemed, for purposes of this  Facility Guaranty.                                                                                                            calculation, to be an Incurrence of additional Indebtedness or an additional Lien at such  (c)   Notwithstanding the foregoing, the Borrower shall not be obligated (i) to cause an                  subsequent time, (ii) the Borrower may revoke an election of an Elected Amount at any time  Excluded  Subsidiary  to  provide  a  Loan  Guarantee  (for  so  long  as  such  entity  is  an           after the election date, (iii) for purposes of all subsequent calculations of the Consolidated  Excluded  Subsidiary),  nor  (ii)  to  cause  any  Restricted  Subsidiary  to  provide  a  Loan           Net Leverage Ratio or the Consolidated Net Senior Secured Leverage Ratio, as applicable,  Guarantee to the extent and for so long as the Incurrence of such Guarantee pursuant to                   the Elected Amount (if any) shall be deemed to be outstanding (unless revoked in accordance  this clause (ii) could reasonably be expected to give rise to or result in: (1) any violation             with clause (ii)), whether or not such amount is actually outstanding, so long as the applicable  of applicable law or regulation; (2) any liability for the officers, directors or (except in              commitment remains outstanding and (iv) for the purpose of Section 4.04(b) (8), Section  the case of a Restricted Subsidiary that is a partnership) shareholders of such Restricted                4.04(b)(16) and clause (dd) of the definition of Permitted Liens, solely to the extent that the  Subsidiary (or, in the case of a Restricted Subsidiary that is a partnership, directors or                Elected Amount has been Incurred in reliance thereof (and has not be reclassified), the  shareholders  of  the  partners  of  such  partnership);  (3)  any  cost,  expense,  liability  or        Elected Amount (if any) shall be deemed to be outstanding under such provisions (unless  obligation  (including  with  respect  to  any  Taxes)  other  than  reasonable  out-of-pocket            revoked in accordance with clause (ii)), whether or not such amount is actually outstanding,  expenses  and  other  than  reasonable  expenses  incurred  in  connection  with  any                     so long as the applicable commitment remains outstanding.  governmental or regulatory filings required as a result of, or any measures pursuant to                            this Section 4.15(c)(1) undertaken in connection with, such Guarantee, which in any case                  Section 4.19. Delaware LLC Divisions  under  any  of  clauses  (1),  (2)  and  (3)  of  Section 4.15(c)  cannot  be  avoided  through                                                                                                                   For purposes of this Annex I and Annex II, in connection with any division or plan of  measures reasonably available to the Borrower or such Restricted Subsidiary; or (4) such                                                                                                            division under Delaware law (or any comparable event un Restricted Subsidiary is prohibited from Incurring such Guarantee by the terms of any                                                                                                            (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation  Indebtedness  of  such  Restricted Subsidiary  existing on  the Initial Funding Date  (or if                                                                                                            or liability of a different Person, then it shall be deemed to have been transferred from the  later,  on  the  date  such entity  becomes  a  Restricted Subsidiary)  that  is  not  prepayable                                                                                                            original Person to the subsequent Person, and (b) if any new Person comes into existence,  without  a  prepayment  premium  (in  each  case,  other  than  Indebtedness  Incurred  to                                                                                                            such new Person shall be deemed to have been organized on the first date of its existence by  provide all or any portion of the funds utilized to consummate the transaction or series of                                                                                                            the holders of its Capital Stock at such time.  related  transactions  pursuant  to  which  such  Person  became  a  Restricted  Subsidiary);                                                                                                                     provided  that  this  Section  4.15(c)(4)  applies  only  for  so  long  as  such  prepayment                                                                                                            Section 4.20. Limitation on Parent Guarantor Activities  premium applies to such Indebtedness.                                                                                                            (1)  The  Parent  Guarantor  will  not  engage  in  any  business  activity  or  undertake  any  other  Section 4.16. [Reserved]                                                                                                            activity, except any such activity:  Section 4.17. Restrictions on Licensing Activities                                                                                                            (a)    reasonably  relating  to  the  offering,  sale,  issuance,  Incurrence,  servicing,  purchase,        The Borrower will not, and will not permit any of its Restricted Subsidiaries to,                   redemption, amendment, exchange, refinancing or retirement of or Investment in the Loans,                                                                                                            the Senior Secured Notes or other Indebtedness (including any Refinancing Indebtedness in                                           tual property, except for the Permitted                          respect  of  any  of the  foregoing)  or  borrowing  directly  or  indirectly  from  a  Parent,  the  Licensing Activities.                                                                                     Borrower or any Restricted Subsidiary);   Section 4.18. Reserved Indebtedness                                                                       (b)    undertaken  with  the  purpose  of,  directly  or  indirectly,  fulfilling  its  obligations  or                                                                                                            exercising  its rights  under  the  Loans,  the  Senior  Secured  Notes  or  other  Indebtedness,        For purposes of determining compliance with any provision of this Agreement which                   Hedging  Obligations  or  any  other  obligations  (including  any  Refinancing  Indebtedness  in  requires the calculation of the Consolidated Net Senior Secured Leverage Ratio or the                     respect of any of the foregoing);  Consolidated Net Leverage Ratio (other than for purposes of calculating the Applicable  Revolving Commitment Fee Percentage or determining compliance with the Financial                          (c)    directly  related  or  reasonably  incidental  to  the  establishment  and/or maintenance  of                                                                                                                                                                                                                                                                        32                                                                                                         33                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            (d)   directly related to investing any amounts received by the Parent Guarantor;                                (3)   immediately after giving pro forma effect to such transaction and any related                                                                                                            financing transactions, as if such transactions had occurred at the beginning of the applicable  (e)   making  Investments,  Investments  in  intra-group  loans  and  Investments  in  any other          two consecutive fiscal  quarter period, either (a)  the  Administrative Borrower or  Subsidiary  Indebtedness of the Parent Guarantor or the Borrower;                                                     Revolver Borrower as applicable or the Successor Company would have been able to Incur at                                                                                                            least  $1.00  of  additional  Indebtedness  pursuant  to  Section  4.04(a);  or  (b)  the  Consolidated  (f)   related to cash management activities; or                                                           Net  Leverage Ratio  would not be  greater than it  was immediately  prior  to giving  effect  to                                                                                                            such transaction; and  (g)   (i) any actions in connection with the Transactions, (ii) any transaction or activity not  to exceed $15 million in the aggregate and (iii) other activities not specifically enumerated                    (4)   the  Administrative  Borrower  or Subsidiary  Revolver  Borrower  as  applicable  above that are immaterial in nature.                                                                      shall have delivered to the Administ                                                                                                           Counsel, each to  the  effect that such consolidation, merger or transfer  and  such  joinder (if  (2) The Parent Guarantor shall not:                                                                       any) comply with the terms of this Agreement and an Opinion of Counsel to the effect that                                                                                                            such joinder (if any) has been duly authorized, executed and delivered and is a legal, valid  (a)   issue  any Capital  Stock  (other  than  to  a  Parent  or  a  Wholly-Owned  Restricted                                                                                                            and binding agreement enforceable against the Successor Company (in each case, in form and  Subsidiary);                                                                                                            substance  reasonably  satisfactory  to  the  Administrative  Agent); provided  that  in  giving  an  (b)   take  any  action  which  would  cause  it  to  no  longer  satisfy  the  requirements  of  an                                                                                    available  exemption  from  the  provisions  of  the U.S.  Investment  Company  Act  of  1940,  as                                                                                                            (b)    For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or  amended;                                                                                                            other  disposition  of  all  or  substantially  all  of  the  properties  and  assets  of  one  or  more  (c)   commence  or  take  any  action  or  facilitate  a  winding-up,  liquidation,  dissolution  or      Subsidiaries of the Administrative Borrower or Subsidiary Revolver Borrower as applicable,  other analogous proceeding; or                                                                            which properties and assets, if held by the Administrative Borrower or Subsidiary Revolver                                                                                                            Borrower as applicable instead of such Subsidiaries, would constitute all or substantially all  (d)   amend  its  constitutive  documents  in  any  manner  which  would  adversely  affect  the          of the properties and assets of the Administrative Borrower or Subsidiary Revolver Borrower  rights of Lenders in any material respect.                                                                as applicable on a consolidated basis, shall be deemed to be the transfer of all or substantially                                                                                                            all  of  the  properties  and  assets  of  the  Administrative  Borrower  or  Subsidiary  Revolver                                                                                                            Borrower as applicable.                                    ARTICLE V                                                                                                             (c)    The  Successor  Company  will  succeed  to,  and  be  substituted  for,  and  may  exercise  Section 5.01. Merger and Consolidation of the  Borrower                                                   every right and power of, the Administrative Borrower or Subsidiary Revolver Borrower as                                                                                                            applicable under this Agreement but in the case of a lease of all or substantially all its assets,  (a)   After  the  Closing  Date,  the  Administrative  Borrower  and  Subsidiary  Revolver                the predecessor company will not be released from its obligations under this Agreement.    Borrower will not consolidate with or merge with or into, or assign, convey, transfer, lease or  otherwise dispose all or substantially all its assets as an entirety or substantially as an entirety,     (d)    Notwithstanding  Section  5.01(a)(2)  and  Section  5.01(a)(3)  (which  do  not  apply  to  in one transaction or a series of related transactions to, any Person, unless:                            transactions  referred  to  in  this  sentence)  and  Section  5.01(a)(4)  (which  does  not  apply  to                                                                                                            transactions referred to in this sentence in which the Administrative Borrower or Subsidiary        (1)   the                                         Successor  Company                                Revolver Borrower as applicable  is the Successor Company), (a) any Restricted Subsidiary  not the  Administrative Borrower or Subsidiary  Revolver Borrower as  applicable) will be  a              may consolidate or otherwise combine with, merge into or transfer all or part of its properties  Person organized and existing under the laws of the United States of America, any State of                and assets to the Administrative Borrower or Subsidiary Revolver Borrower as applicable, (b)  the  United  States  or  the  District  of  Columbia  and  the  Successor  Company  (if  not  the         any  Restricted  Subsidiary  that  is  not  a  Subsidiary  Guarantor may  consolidate or  otherwise  Administrative  Borrower  or  Subsidiary  Revolver  Borrower  as  applicable)  will  expressly            combine  with,  merge  into  or  transfer  all  or  part  of  its  properties  and  assets  to  any  other  assume  by  way  of  a  joinder,  executed  and  delivered  to  the  Administrative  Agent,  in  form     Restricted  Subsidiary  or  the  Administrative  Borrower  or  Subsidiary  Revolver  Borrower  as  reasonably satisfactory to the Administrative Agent, all the obligations of the Administrative            applicable  and  (c)  the  Administrative  Borrower  or  Subsidiary  Revolver  Borrower  as  Borrower  or  Subsidiary  Revolver  Borrower  as  applicable,  under  this  Agreement,  any               applicable  and  the  Restricted  Subsidiaries  may  effect  any  Permitted  Reorganization.  Intercreditor Agreement and the Security Documents (or, subject to Section 4.12 provided a                Notwithstanding Section 5.01(a)(3) (which does not apply to the transactions referred to in  Lien of at least equivalent ranking over the same assets), as applicable;                                 this  sentence),  the  Borrower  may  consolidate  or  otherwise  combine  with  or  merge  into  an                                                                                                            Affiliate  incorporated  or  organized  for  the  purpose  of  changing  the  legal  domicile  of  the        (2)   immediately  after  giving  effect  to  such  transaction  (and  treating  any                Borrower, reincorporating the Borrower in another jurisdiction (subject to Section 5.01(a)(1))  Indebtedness that becomes an obligation of the Successor Company or any Subsidiary of the                 or changing the legal form of the Borrower.  Successor Company as a result of such transaction as having been Incurred by the Successor  Company or such Subsidiary at the time of such transaction), no Default or Event of Default               (e)    The foregoing provisions (other than the requirements of Section 5.01(a)(2)) shall not  shall have occurred and be continuing;                                                                    apply to the creation of a new Subsidiary as a Restricted Subsidiary.                                                                               34                                                                                                         35                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            Section 5.02. Merger and Consolidation of the Subsidiary Guarantors                                          (a)   After the Closing  Date,  none  of the Subsidiary  Guarantors (other than  a  Subsidiary                                               ANNEX II  Guarantor  whose  Loan  Guarantee  is  to  be  released  in  accordance  with  the  terms  of  this                                 ADDITIONAL DEFINITIONS  Agreement or any Intercreditor Agreement and other than the Subsidiary Revolver Borrower  which shall be subject to Section 5.01 above) may:                                                        Save where specified to the contrary, references in this Annex II to sections of Articles IV or                                                                                                            V are to those sections of Annex I.         (1)   consolidate  with  or  merge  with  or  into  any  Person  (whether  or  not  such  Subsidiary Guarantor is the surviving Person);                                                             Acquired  Indebtedness                                                                                                           existing at the time such Person becomes a Restricted Subsidiary, (2) assumed in connection        (2)   sell, assign, convey, transfer, lease or otherwise dispose of, all or substantially           with the acquisition of assets from such Person, in each case whether or not Incurred by such  all  its  assets  as  an  entirety  or substantially  as  an  entirety,  in  one  transaction  or  a  series  of Person in connection with such Person becoming a Restricted Subsidiary or such acquisition  related transactions, to any Person; or                                                                   or (3) of a Person at the time such Person merges with or into or consolidates or otherwise                                                                                                            combines  with  the  Borrower  or  any  Restricted  Subsidiary.  Subject  to  Section  1.05  of  the        (3)   permit any Person to merge with or into it,                                                   Credit  Agreement,  Acquired  Indebtedness  shall  be  deemed  to  have  been  Incurred,  with                                                                                                            respect  to  clause  (1)  of  this  definition,  on  the  date  such  Person  becomes  a  Restricted        unless:                                                                                             Subsidiary and, with respect to clause (2) of this definition, on the date of consummation of                                                                                                            such acquisition of assets and, with respect to clause (3) of this definition, on the date of the              (a) the  other  Person  is  the  Borrower  or  a  Restricted  Subsidiary  that  is  a                                                                                                            relevant merger, consolidation or other combination.                 Subsidiary  Guarantor  or  becomes  a  Subsidiary  Guarantor  as  a  result  of                 such transaction; or                                                                        Additional Assets                     (b) (1)  either  (x) a  Subsidiary  Guarantor  is  the  surviving  Person  or  (y) the        (a)    any  property or assets  (other than  Indebtedness  and Capital  Stock) not classified as                 resulting,  surviving  or  transferee  Person  expressly  assumes  all  of  the                   current  assets  under  GAAP  used  or  to  be  used  by  the  Borrower  or  a  Restricted                 obligations of the Subsidiary Guarantor under its Loan Guarantee and this                         Subsidiary or otherwise useful in a Similar Business (it being understood that capital                 Agreement  (pursuant  to  a  joinder  agreement)  and  all  obligations  of  the                  expenditures on property or assets already used in a Similar Business or to replace any                 Guarantor under any Intercreditor Agreement and the Security Documents,                           property  or  assets  that  are  the  subject  of  an  Asset  Disposition  shall  be  deemed  an                 as applicable; and (2) immediately after giving effect to the transaction, no                     investment in Additional Assets);                  Default or Event of Default shall have occurred and is continuing; or                                                                                                            (b)    the Capital Stock of  a Person that  is  engaged in a  Similar  Business  and  becomes a              (c) the transaction constitutes a sale or other disposition (including by way of                     Restricted  Subsidiary  as  a  result  of  the  acquisition  of  such  Capital  Stock  by  the                 consolidation  or  merger)  of  a  Subsidiary  Guarantor  or  the  sale  or                       Borrower or a Restricted Subsidiary; or                 disposition of all or substantially all the assets of a Subsidiary Guarantor                 (in  each  case  other  than  to  the  Borrower  or  a  Restricted  Subsidiary)            (c)    Capital  Stock  constituting  a  minority  interest  in  any  Person  that  at  such  time  is  a                 otherwise  permitted  by  this  Agreement  and  the  proceeds  therefrom  are                     Restricted Subsidiary.                 applied as required by this Agreement; or                                                                                                              Affiliate                                        , directly or indirectly, controlling              (d) the transaction constitutes a Permitted Reorganization.                                   or controlled by or under direct or indirect common control with such specified Person.  For   (b)   Notwithstanding  Section  5.02(a)(3)(b)(2)  (which  does  not  apply  to  transactions              power to direct the management and policies of such Person, directly or indirectly, whether  referred  to  in  this  sentence),  (a) any  Restricted  Subsidiary  may  consolidate  or  otherwise      through  the  ownership  of  voting  securities,  by  contract  or  otherwise;  and  the  terms  combine with, merge into or transfer all or part of its properties and assets to a Guarantor and                                                                           (b) any Guarantor may consolidate or otherwise combine with, merge into or transfer all or  part  of  its  properties  and  assets  to  any  other  Subsidiary  Guarantor  or  the  Borrower.          Asset Disposition                 to the Borrower and the Restricted Subsidiaries, any  Notwithstanding Section 5.02(a)(3)(b)(2) (which does not apply to the transactions referred to            direct or indirect sale, lease (other than an operating lease entered into in the ordinary course  in this sub-section (b)), a Subsidiary Guarantor may consolidate or otherwise combine with or             of business), transfer, issuance or other disposition, or a series of related sales, leases (other  merge  into  an  Affiliate  incorporated  or  organized  for  the  purpose  of  changing  the  legal      than operating leases entered into in the ordinary course of business), transfers, issuances or  domicile  of  the  Subsidiary  Guarantor,  reincorporating  the  Subsidiary  Guarantor  in  another       dispositions that are part of a common plan, of shares of Capital Stock of a Subsidiary (other  jurisdiction, or changing the legal form of the Subsidiary Guarantor.                                                                                                rred to for the purposes                                                                                                             including  any  disposition  by  means  of  a  merger,  consolidation  or  similar  transaction;                                                                               36                                                                                                         37                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            provided that the sale, lease, transfer, issuance or other disposition of all or substantially all of     (i)    the granting of Liens not prohibited by Section 4.06;  the assets of the Borrower (or any successor company) and its Restricted Subsidiaries taken  as a whole will be governed by the provisions of Section 7.01(i) of the Credit Agreement and              (j)    a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases,  Article V of Annex I and not by the provisions of Section 4.08 of Annex I. Notwithstanding                       transfers, issuances or dispositions that are part of a common plan, of receivables or  the  preceding  provisions  of  this  definition,  the  following  items  shall  not  be  deemed  to  be         related assets in connection with the compromise, settlement or collection thereof in  Asset Dispositions:                                                                                              the ordinary course of business or in bankruptcy or similar proceedings and exclusive                                                                                                                   of factoring or similar arrangements;  (a)   a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases,        transfers,  issuances  or  dispositions  that  are  part  of  a  common  plan,  by  a  Restricted   (k)    subject to Section 4.16, the licensing or sublicensing of intellectual property or other        Subsidiary  to  the  Borrower  or  by  the  Borrower  or  a  Restricted  Subsidiary  to  a                 general  intangibles  and  licenses,  sublicenses,  leases,  subleases  of  other  property,  in        Restricted Subsidiary;                                                                                     each case, in the ordinary course of business;   (b)   a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases,       (l)    foreclosure, condemnation, eminent domain or any similar action with respect to any        transfers,  issuances  or  dispositions  that  are  part  of  a  common  plan,  of  cash,  Cash            property or other assets;        Equivalents, Temporary Cash Investments or Investment Grade Securities;                                                                                                            (m)    the  sale  or  discount  (with  or  without  recourse,  and  on  customary  or  commercially  (c)   a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases,              reasonable  terms)  of  tax  receivables  and  factoring  accounts  receivable  or  notes        transfers,  issuances  or  dispositions  that  are  part  of  a  common  plan,  of  inventory,             receivable arising in the ordinary course of business, or the conversion or exchange of        consumer equipment, trading stock or other assets in the ordinary course of business;                      accounts receivable for notes receivable;   (d)   a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases,       (n)    sales, transfers or dispositions of receivables and related assets in connection with any        transfers,  issuances  or  dispositions  that  are  part  of  a  common  plan,  of  obsolete,              Qualified Receivables Financing or any factoring transaction or in the ordinary course        surplus or worn out equipment or other assets or equipment or other similar assets that                    of  business,  and  Investments  in  a  Receivables  Entity  consisting  of  cash  or        are no longer useful in the conduct of the business (as determined in good faith by the                    Securitization Assets;        Borrower) of the Borrower and its Restricted Subsidiaries;                                                                                                            (o)    any sale, lease, transfer, issuance or other disposition, or any series of related sales,  (e)   transactions  permitted  under  Article  V  of  Annex  I  (other  than  as  permitted  under               leases, transfers, issuances or dispositions that are part of a common plan, of Capital        Section 5.02(a)(3)(c) or a transaction that constitutes a Change of Control;                               Stock, Indebtedness or other securities of an Unrestricted Subsidiary;   (f)   an issuance of Capital Stock by a Restricted Subsidiary to the Borrower or to another               (p)    any sale, lease, transfer, issuance or other disposition, or any series of related sales,        Restricted Subsidiary or as part of or pursuant to an equity incentive or compensation                     leases, transfers, issuances or dispositions that are part of a common plan, of Capital        plan approved by the Board of Directors of the Borrower;                                                   Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or                                                                                                                   to  a  Person  (other  than  the  Borrower  or  a  Restricted  Subsidiary)  from  whom  such  (g)   any sale, lease, transfer, issuance or other disposition, or any series of related sales,                  Restricted  Subsidiary  was  acquired,  or  from  whom  such  Restricted  Subsidiary        leases, transfers, issuances or dispositions that are part of a common plan, of Capital                    acquired its business and assets (having been newly formed in connection with such        Stock, properties or assets in a single transaction or series of related transactions with                 acquisition),  made  as  part  of  such  acquisition  and  in  each  case  comprising  all  or  a        a fair market value (as determined in good faith by the Borrower at the time of such                       portion of the consideration in respect of such sale or acquisition;        sale, lease, transfer, issuance or other disposition or, at the option of the Borrower, on        the  date  of  contractually  agreeing  to  such  sale,  lease,  transfer,  issuance  or  other     (q)    any  surrender or  waiver of  contract rights or  the  settlement,  release or  surrender of        disposition)  not  to  exceed  the  greater  of  $20  million  and  10.0%  of  Pro  Forma                  contract, tort or other claims of any kind;        EBITDA  for  the  most  recently  four  full  fiscal  quarters  for  which  internal  financial        statements  of  the  Borrower  are  available  immediately  preceding  the  date  of                (r)    any sale, lease, transfer, issuance or other disposition, or any series of related sales,        determination;                                                                                             leases, transfers, issuances or dispositions that are part of a common plan, of assets to                                                                                                                   a Person who is providing services related to such assets, the provision of which have  (h)   (i)  any  Restricted  Payment  that  is  permitted  to  be  made  under  Section  4.05,  any               been  or  are  to  be  outsourced  by  the  Borrower  or  any  Restricted  Subsidiary  to  such        transaction  specifically  excluded  from  the  definition  of  Restricted  Payment and  the               Person; provided, however, that the Board of Directors of the Borrower shall certify        making  of  any  Permitted  Payment  and  Permitted  Investment  and  (ii)  solely  for  the               that  in  the  opinion  of  the  Board  of  Directors,  the  outsourcing  transaction  will  be        purposes  of  Section  4.08(b),  a  disposition,  the proceeds  of  which  are  used  to  make             economically beneficial to the Borrower and the Restricted Subsidiaries (considered        such  Restricted  Payments  permitted  to  be  made  under  Section  4.05,  Permitted                      as a whole);         Payments or Permitted Investments;                                                                                38                                                                                                         39                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            (s)   any sale, lease, transfer, issuance or other disposition, or any series of related sales,           In the event that a transaction (or a portion thereof) meets the criteria of more than one of the        leases, transfers, issuances or dispositions that are part of a common plan, with respect           categories described in clauses (a) through (aa) above or such transaction (or a portion        to  property  built,  owned  or  otherwise  acquired  by  the  Borrower  or  any  Restricted        thereof) would also be a permitted Restricted Payment or Permitted Investment, the        Subsidiary  pursuant  to  customary  sale  and  lease-back  transactions,  asset                    Borrower, in its sole discretion, will be entitled to divide and classify such transaction (or a        securitizations  and  other  similar  financings  permitted  by  this  Agreement; provided          portion thereof), and from time to time reclassify such transaction (or a portion thereof), into        that, with respect to the Real Estate Portfolio Transfer (including the Permitted Sale              one or more such categories and/or one or more of the types of permitted Restricted        and  Leaseback  Transactions),  the  Borrower  shall  use  its  commercially  reasonable            Payments or Permitted Investments.        efforts to consummate such transactions on or prior to the nine-month anniversary of                        the Closing Date;                                                                                     Associate                    ngaged in a Similar Business of which the Borrower or a                                                                                                            Restricted  Subsidiary  are  the  legal  and  beneficial  owners  of  between  20%  and  50%  of  all  (t)   any sale, lease, transfer, conveyance or other disposition in one or a series of related            outstanding  Voting  Stock  and  (ii)  any joint  venture  engaged  in  a  Similar  Business  entered        transactions  of  any  assets  (including  Capital  Stock)  of  the  Borrower  and  its             into by the Borrower or any Restricted Subsidiary.        Subsidiaries or of any Person that becomes a Restricted Subsidiary (i) acquired in a        transaction permitted under this Agreement, which assets are not used or useful in the               Beneficial  Owner                                             -3 and Rule 13d-5        core or principal business of the Borrower and its Restricted Subsidiaries, or (ii) made            under the Exchange Act, except that in calculating the beneficial ownership of any particular        in  connection  with  the  approval  of  any  applicable  antitrust  authority  or  pursuant  to        Competition Laws or otherwise necessary or advisable in the good faith determination        of the Borrower to consummate any acquisition permitted under this Agreement;                       acquire  by  conversion  or  exercise  of  other  securities,  whether  such  right  is  currently                                                                                                            exercisable or is exercisa (u)   dispositions  of  property  to  the  extent  that  (i)  such  property  is  exchanged  for  credit                                                           against  the  purchase  price  of  similar  replacement  property  that  is  purchased  within        270 days thereof or (ii) an amount equal to the Net Available Cash of such disposition               Board  of  Directors       are  applied  to  the  purchase  price  of  such  replacement  property  (which  replacement        managers,  as  applicable,  of  the  corporation,  or  any  duly  authorized  committee  thereof;  (2)        property is purchased within 270 days thereof) ;                                                    with respect to any partnership, the board of directors or other governing body of the general                                                                                                            partner of the partnership or any duly authorized committee thereof; and (3) with respect to  (v)   the  lapse,  abandonment  or  other  disposition  of  intellectual  property  rights  in  the       any  other  Person,  the  board  or  any  duly  authorized  committee  of  such  Person  serving  a        ordinary course of business, which in the reasonable good faith determination of the                similar function.  Unless otherwise specified in this Agreement, whenever any provision of        Borrower are no longer commercially reasonable to maintain or are not material to the               this  Agreement  requires  any  action  or  determination  to  be  made  by,  or  any  approval  of,  a        conduct  of  the  business  of  the  Borrower  and  its  Restricted  Subsidiaries  taken  as  a     Board  of  Directors,  such  action,  determination  or  approval  shall  be  deemed  to  have  been        whole;                                                                                              taken  or  made  if  approved  by  a  majority  of  the  directors  on  any  such  Board  of  Directors                                                                                                            (whether or not such action or approval is taken as part of a formal board meeting or as a  (w)   [Reserved];                                                                                         formal board approval); provided that any action required to be taken under this Agreement                                                                                                            by  the  Board  of  Directors  of  the  Borrower  can,  in  the  alternative,  at  the  option  of  the  (x)   to  the  extent  allowable  under  Section  1031  of  the  Code,  or  any  comparable  or           Borrower, be taken by the Parent Guarantor and its successors or any Subsidiary thereof that        successor provision, any exchange of like property (excluding any boot thereon) for                 is a Parent of the Borrower.        use in a Similar Business;                                                                                                              Capital  Stock (y)   sales,  transfers  and  other  dispositions  of  Investments  in  joint  ventures  to  the  extent  warrants or options for, participation or other equivalents of, or partnership or other interests        required by, or made pursuant to, customary buy/sell arrangements between the joint                 in (however designated), equity of such Person, including any Preferred Stock, but excluding        venture  parties  set  forth  in  joint  venture  arrangements  and  similar  binding               any debt securities convertible into such equity.        arrangements;                                                                                                             Capitalized  Lease  Obligations (z)   contractual  arrangements  under  long-term  contracts  with  customers  entered  into  by          accounted for as a capitalized lease for financial reporting purposes on the basis of GAAP.         the Borrower or a Restricted Subsidiary in the ordinary course of business which are                For  the  avoidance  of  doubt,  operating  leases  will  not  be  deemed  Capitalized  Lease        treated as sales for accounting purposes; provided that there is no transfer of title in            Obligations.        connection with such contractual arrangement; and                                                                                                             Cash Equivalents         (aa)  a sale, lease, transfer, issuance or other disposition, or a series of related sales, leases,        transfers, issuances or dispositions in connection with the Transactions to the extent              (a)    securities  issued  or  directly  and  fully  Guaranteed  or  insured  by  the  United  States        described in the Offering Memorandum or any Permitted Reorganization.                                      Government,  Canada,  the  United  Kingdom,  Switzerland  or  any  member  state  of  the                                                                                                                   European Union, in each case, any agency or instrumentality of thereof (provided that                                                                               40                                                                                                         41                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                                  the full faith and credit of such country or such member  state is pledged in support                 CFC Holdco       thereof), having maturities of not more than two years from the date of acquisition;                and/or indebtedness of, each as determined for U.S. federal income tax purposes, one or more                                                                                                            Foreign Subsidiaries that are CFCs, including the indirect ownership of such equity interests  (b)   certificates  of  deposit,  time  deposits,  eurodollar  time  deposits,  overnight  bank           or indebtedness through one or more CFC Holdcos that have no other material assets.                          acceptances having maturities of not more than one year from the        date of acquisition thereof issued by a bank or trust company (a) whose commercial                   Change of Control                                                                      -                                         -                                      -                                                                    (a)    the  consummation  of  any  transaction  (including,  without  limitation,  any  merger  or        time  neither  is  issuing  comparable  ratings,  then  a  comparable  rating  of  another        Nationally Recognized Statistical Rating Organization) or (b) (in the event that such                      term  is  used  in  Section 13(d)(3)  of  the  Exchange  Act))  other  than  one  or  more        bank  or  trust  company  does  not  have  commercial  paper  which  is  rated)  having                    Permitted Holders (or a group controlled by one or more Permitted Holders) becomes        combined capital and surplus in excess of $500 million;                                                    the  Beneficial  Owner,  directly  or  indirectly,  of  more  than  50%  of  the  issued  and                                                                                                                   outstanding  Voting  Stock  of  the  Administrative  Borrower  (or  any  Successor  (c)   repurchase obligations with a term of not more than 30 days for underlying securities of                   Company) or Subsidiary Revolver Borrower (or any Successor Company), measured        the types described in clauses (a) and (b) above entered into with any bank meeting                        by voting power rather than number of shares;         the qualifications specified in clause (b) above;                                                                                                            (b)    following  the  first  Public  Offering  by  an  IPO  Entity,  during  any  period  of  two  (d)   commer                                                          -                                          consecutive  years,  individuals  who  at  the  beginning  of  such  period  constituted  the        equivalent thereof by     -                                      -                                         majority  of  the  directors  (excluding  any  employee  representatives,  if  any)  on  the        equivalent thereof by Fitch or carrying an equivalent rating by a Nationally Recognized                    Board  of  Directors  of  such  IPO  Entity  (together   with  any  new  directors  whose        Statistical  Rating  Organization,  if  both  of  the  two  named  rating  agencies  cease                 election  by  the  majority  of  such  directors  on  such  Board  of  Directors  of  the  IPO        publishing  ratings  of  investments  or,  if  no  rating  is  available  in  respect  of  the             Entity  or  whose  nomination  for  election  by  shareholders  of  the  IPO  Entity,  as        commercial paper, the issuer of which has an equivalent rating in respect of its long-                     applicable, was approved by a vote of the majority of such directors on the Board of        term debt, and in  any  case maturing  within  one  year  after  the  date  of  acquisition                Directors  of  the  IPO  Entity  then  still  in  office   who  were  either  directors  at  the        thereof;                                                                                                   beginning of such period or whose election or nomination for election was previously                                                                                                                   so  approved)  ceased  for  any  reason  to  constitute  the  majority  of  the  directors  (e)   readily marketable  direct obligations issued  by  any state of the  United  States of                     (excluding any  employee  representatives,  if  any)  on the  Board  of Directors of such        America, the United Kingdom, Switzerland, Canada, any member of the European                               IPO Entity, then in office; or         Union or any political subdivision thereof, in each case, having one of the two highest                                                                  (or,  if  at  the  time,                  (c)    the direct or indirect sale, lease, transfer, conveyance or other disposition (other than        neither  is  issuing  comparable  ratings,  then  a  comparable  rating  of  another                       by way of merger, consolidation or other business combination transaction), in one or        Nationally  Recognized  Statistical  Rating  Organization)  with  maturities  of  not  more                a series of related transactions, of all or substantially all of the assets of the Borrower        than two years from the date of acquisition;                                                               (or  any Successor Company) and  its Restricted Subsidiaries or Subsidiary Revolver                                                                                                                   Borrower  (or  any  Successor  Company)  and  its  Restricted  Subsidiaries,  taken  as  a  (f)                                                                  -                                                     -                       f at                                 Holder (or a group controlled by one or more Permitted Holders).        the time, neither is issuing comparable ratings, then a comparable rating of another        Nationally Recognized Statistical Rating Organization) with maturities of 12 months                  Commodity Hedging Agreements       or less from the date of acquisition;                                                               contract,  commodity  futures  or  forward  contract,  commodities  option  contract  or  other                                                                                                            similar  contract  (including  commodities  derivative  agreements  or  arrangements),  to  which  (g)   bills of exchange issued in the United States, Canada, a member state of the European               such Person is a party or a beneficiary.         Union,  Switzerland  or  the  United  Kingdom,  eligible  for  rediscount  at  the  relevant        central bank and accepted by a bank (or any dematerialized equivalent); and                          Competition  Laws                                                                                                           antitrust,  competition  or  trade  regulation  statutes,  rules,  regulations,  orders,  decrees,  (h)   interests  in  any  investment  company,  money  market  or  enhanced  high  yield  fund            administrative and judicial doctrines and other laws that are designed or intended to prohibit,        which  invests  95%  or  more  of  its  assets  in  instruments  of  the  type  specified  in       restrict or regulate actions or transactions having the purpose or effect of monopolization or        clauses (a) through (g) above.                                                                      restraint of  trade  or lessening  of competition  through  merger  or  acquisition  or  effectuating                                                                                                            foreign investment.   CFC                                                       of Section 957(a) of the  Internal Revenue Code of 1986, as amended.                                                                 Compliance  Certificate       a  Compliance  Certificate  substantially  in  the  form  of                                                                                                            Exhibit J to this Agreement.                                                                               42                                                                                                         43                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                             Consolidated  EBITDA                                              solidated  Net                         (j)    x)  any  loss  from  discontinued  operations  (but  if  such  operations  are  classified  as  Income for such period less the aggregate amount of lease payments during such period under                      discontinued due to the fact that they are subject to an agreement to dispose of such  the  lease-back  arrangements  entered  into  in  connection  with  the  Permitted  Sale  and                    operations,  only  when  and  to  the  extent  such  operations  are  actually  disposed  of),  Leaseback  Transactions  (for  the  avoidance  of  doubt,  for  the  purposes  of  this  definition  of          reduced by (y) any income from discontinued operations (but if such operations are  Consolidated EBITDA, the treatment of such payments under GAAP shall be disregarded),                            classified  as  discontinued  due  to  the  fact  that  they  are  subject  to  an  agreement  to  plus the following to the extent deducted in calculating such Consolidated Net Income:                           dispose of such operations, only when and to the extent such operations are actually                                                                                                                   disposed of); and  (a)   Consolidated Interest Expense and Receivables Fees;                                                                                                            (k)    to the extent not already otherwise included herein, adjustments and add-backs of the  (b)   Consolidated Income Taxes;                                                                                                                   included in the Offering Memorandum.  (c)   consolidated depreciation expense;                                                                                                             Consolidated  Income  Taxes (d)   consolidated amortization and impairment expense;                                                   based on income, profits or capital of the Borrower and the Restricted Subsidiaries whether                                                                                                            or not paid, estimated, accrued or required to be remitted to any governmental authority.   (e)   Parent Expenses of a Parent;                                                                                                             Consolidated  Interest  Expense (f)   any  expenses,  charges  or  other  costs  related  to  any  Equity  Offering  (including  of  a    basis  of  GAAP),  the  consolidated  net  interest  income/expense  of  the  Borrower  and  the        Parent),  Investment,  acquisition  (including  amounts  paid  in  connection  with  the            Restricted Subsidiaries, whether paid or accrued, plus or including (without duplication) any        acquisition or retention of one or more individuals comprising part of a management                 interest, costs and charges consisting of:        team retained to manage the acquired business; provided that such payments are made        in connection with such acquisition and are consistent with the customary practice in               (a)    interest expense attributable to Capitalized Lease Obligations (excluding any interest        the  industry  at  the  time  of  such  acquisition),  disposition,  recapitalization  or  the             expense attributable to any lease-back arrangements entered into in connection with        Incurrence  of  any  Indebtedness  permitted  by  this  Agreement  (whether  or  not                       the Permitted Sale and Leaseback Transactions);        successful) (including any such fees, expenses or charges related to the Transactions        (including of a Parent), in each case, as determined in good faith by the Borrower);                (b)    amortization of debt discount, but excluding amortization of debt issuance costs, fees                                                                                                                   and  expenses  and  the  expensing  of  any  bridge  commitment  or  other  financing  fees  (g)   any minority interest expense (whether paid or not) consisting of income attributable                      and excluding any  expense from  the discounting  of  any  Indebtedness in  connection        to minority equity interests of third parties in such period or any prior period or any                    with  the  applications  of  purchase  accounting  in  connection  with  an  acquisition        net  earnings,  income  or  share  of  profit  of  any  Associates,  associated  company  or               (including the Transactions);        undertaking;                                                                                                             (c)    non-cash interest expense;  (h)   the  amount  of  management,  monitoring,  consultancy  and  advisory  fees  and  related        expenses  or  any  payments  for  financial  advisory,  financing,  underwriting  or                (d)    dividends or other distributions in respect of all Disqualified Stock of the Borrower        placement  services  or  any  payments  pursuant  to  franchising  agreements,  business                   and  all  Preferred  Stock  of  any  Restricted  Subsidiary,  to  the  extent  held  by  Persons        service  related  agreements  or  other  similar  arrangements  paid  in  such  period  (or                other than the Borrower or a Subsidiary of the Borrower;        accruals relating to such fees and related expenses) to any Permitted Holder (whether        directly  or  indirectly,  through  any  Parent)  to  the  extent  permitted  by  Section  4.09;    (e)    the  consolidated  interest  expense  that  was  capitalized  during  such  period  (without        provided that any payments for such fees and related expense shall not be included in                      duplication);         Consolidated  EBITDA  for  any  period  to  the  extent  they  were  accrued  for  in  such        period or any prior period and added back to Consolidated EBITDA in such period or                  (f)    net  payments  and  receipts  (if  any)  pursuant  to  Hedging  Obligations  (other  than        any such prior period;                                                                                     Currency  Agreements)  (excluding  unrealized  mark-to-market  gains  and  losses                                                                                                                   attributable to Hedging Obligations (other than Currency Agreements));   (i)   other  non-cash  charges,  write-downs  or  items  reducing  Consolidated  Net  Income        (excluding any such non-cash charge, write-down or item to the extent it represents an              (g)    any  interest  actually  paid  by  the  Borrower  or  any  Restricted  Subsidiary  on        accrual of or reserve for cash charges in any  future period) or other non-cash items                      Indebtedness of another Person that is guaranteed by the Borrower or any Restricted        classified  by  the  Borrower  as  special  items  less  other  non-cash  items  of  income                Subsidiary  or  secured  by  a  Lien  on  assets  of  the  Borrower  or  any  Restricted        increasing Consolidated Net Income (other than any non-cash items increasing such                          Subsidiary; and        Consolidated  Net  Income  pursuant  to  clauses  (a)  through  (m)  of  the  definition  of        Consolidated  Net  Income  and  excluding  any  such  non-cash  item  of  income  to  the        extent it represents a receipt of cash in any future period);                                                                                44                                                                                                         45                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            (h)   premiums,  penalties,  annual  agency  fees,  penalties  for  failure  to  comply  with                    dividend or other distribution (subject, in the case of a dividend to another Restricted        registration obligations (if applicable) and any amendment fees, in each case, related                     Subsidiary, to the limitation contained in this clause);        to any Indebtedness of the Borrower or any Restricted Subsidiaries.                                                                                                            (c)    any net gain (or loss) realized upon the sale, abandonment or other disposition of any        Notwithstanding any of the foregoing, Consolidated Interest Expense shall not include                      asset or disposed operations of the Borrower or any Restricted Subsidiary (including        (i)  any  interest  accrued,  capitalized  or  paid  in  respect  of  Subordinated  Shareholder            pursuant to any sale/ leaseback transaction) which is not sold or otherwise disposed of        Funding, (ii) any commissions, discounts, yield and other fees and charges related to a                    in the ordinary course of business (as determined in good faith by an Officer of the        Qualified  Receivables  Financing,  (iii)  any  payments  on  any  operating  leases,                      Borrower) or returned surplus assets of any Pension Plan;        including  without  limitation  any  payments  on  any  lease,  concession  or  license  of        property (or Guarantee thereof) which would be considered an operating lease under                  (d)    any extraordinary, exceptional, unusual or nonrecurring gain, loss, charge or expense        GAAP,  (iv) net  payments  and  receipts  (if  any)  pursuant  to  Currency  Agreements                    or any  charges,  expenses  or reserves  in  respect  of  any  restructuring,  redundancy  or        (including  unrealized  mark-to-market  gains  and  losses  attributable  to  Hedging                      severance  or  any  expenses,  charges,  reserves,  gains  or  other  costs  related  to  the        Obligations), and (v) any pension liability interest costs.                                                Transactions; and, to the extent not otherwise included in this clause (d): recruiting,                                                                                                                   retention  and  relocation  costs;  signing  bonuses  and  related  expenses  and  one-time   Consolidated Net Income                                           Borrower and                                  compensation charges;  curtailments  or  modifications  to  pension  and  post-retirement  the  Restricted  Subsidiaries  determined  on  a  consolidated  basis  on  the  basis  of  GAAP;                 employee benefit plans transaction and refinancing bonuses and special bonuses paid  provided, however, that there will not be included in such Consolidated Net Income:                              in connection with dividends and distributions to equity holders; start-up, transition,                                                                                                                   strategic initiative (including any multi-year strategic initiative) and integration costs,  (a)   any  net  income  (loss)  of  any  Person  if  such  Person  is  not  a  Restricted  Subsidiary,           charges or expenses; costs, charges and expenses related to the start-up, pre-opening,        except that the Borrower equity in the net income of any such Person for such period                       opening,  closure,  and/or  consolidation  of  operations,  offices  and  facilities;  business        will be included in such Consolidated Net Income up to the aggregate amount of cash                        optimization  costs,  charges  or  expenses;  costs,  charges  and  expenses  incurred  in        or  Cash  Equivalents  actually  distributed  by  such  Person  during  such  period  to  the              connection  with  new  product  design,  development  and  introductions;  costs  and        Borrower or a Restricted Subsidiary as a dividend or other distribution or return on                       expenses  incurred  in  connection  with  intellectual  property  development  and  new        investment  (subject,  in  the  case  of  a  dividend  or  other  distribution  or  return  on             systems  design;  costs  and  expenses  incurred  in  connection  with  implementation,        investment  to  a  Restricted  Subsidiary,  to  the  limitations  contained  in  clause  (b)               replacement,  development  or  upgrade  of  operational,  reporting  and  information        below);                                                                                                    technology systems and technology initiatives; any costs, expenses or charges relating                                                                                                                   to  any  governmental  investigation  or  any  litigation  or  other  dispute  (including  with  (b)   solely  for the purpose of determining the amount available for  Restricted Payments                       any  customer);  costs  and  expenses  in  respect  of  warranty  payments;  or  any  fees,        under Section 4.05(a)(c)(i), any net income (loss) of any Restricted Subsidiary that is                    charges, losses, costs and expenses incurred during such period, or any amortization        not a Guarantor if such Subsidiary is subject to restrictions, directly or indirectly, on                  thereof  for  such period,  in  connection  with  or  related  to  any  acquisition,  Restricted        the  payment  of  dividends  or  the  making  of  distributions  by  such  Restricted                      Payment, Investment, recapitalization, asset sale, issuance, incurrence, registration or        Subsidiary, directly or indirectly, to the Borrower by operation of the terms of such                      repayment  or  modification  of  Indebtedness,  issuance  or  offering  of  Capital  Stock,                                                                                                                   refinancing  transaction  or  amendment,  modification  or  waiver  in  respect  of  the        statute or governmental rule or regulation applicable to such Restricted Subsidiary or                     documentation  relating  to  any  such  transaction  and  any  charges  or  non-recurring        its  shareholders  (other  than  (a)  restrictions  that  have  been  waived  or  otherwise                merger costs incurred during such period as a result of any such transaction;        released, (b) restrictions pursuant to the Senior Secured Notes Indenture,  the Senior        Secured  Notes,  the  Loan  Documents,  the  Existing  Target  Notes  and  the  Existing            (e)    the cumulative effect of a change in accounting principles;        Target Notes  Indenture, any Intercreditor Agreement or any Additional Intercreditor        Agreement,  (c)  contractual  or  legal  restrictions  in  effect  on  the  Initial  Date  with     (f)    any non-cash compensation charge or expense arising from any grant of stock, stock        respect to a Restricted Subsidiary (including pursuant to the agreements specified in                      options  or  other  equity  based  awards  and  any  non-cash  deemed  finance  charges  in        Section  4.07(b)(3)  and  other  restrictions  with  respect  to  such  Restricted  Subsidiary             respect of any pension liabilities or other provisions;        that,  taken  as  a  whole,  are  not  materially  less  favorable  to  the  Lenders  than  such        restrictions in effect on the Initial Funding Date, and (d) restrictions as in effect on the        (g)    all deferred financing costs written off and premiums paid or other expenses incurred        Initial                                                                                                    directly in connection with any early extinguishment of Indebtedness and any net gain        equity  in  the  net  income  of  any  such  Restricted  Subsidiary  for  such  period  will  be           (loss) from any write-off or forgiveness of Indebtedness;        included in such Consolidated Net Income up to the aggregate amount of cash or Cash        Equivalents  or  non-cash  distributions  to  the  extent  converted  into  cash  or  Cash          (h)    any unrealized gains or losses in respect of Hedging Obligations or other derivative        Equivalents actually distributed or that could have been distributed by such Restricted                    instruments or any ineffectiveness recognized in earnings related to qualifying hedge        Subsidiary during such period to the Borrower or another Restricted Subsidiary as a                        transactions or the fair value or changes therein recognized in earnings for derivatives                                                                                                                   that  do  not  qualify  as  hedge  transactions,  in  each  case,  in  respect  of  Hedging                                                                                                                   Obligations or other derivative instruments;                                                                               46                                                                                                         47                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            (i)   any unrealized foreign currency translation gains or losses in respect of Indebtedness               Consolidated Net Senior Secured Leverage Ratio       of any Person denominated in a currency other than the functional currency of such                  the ratio of (x) Consolidated Net Senior Secured Leverage at such date to (y) the aggregate        Person and any unrealized foreign exchange gains or losses relating to translation of               amount of Pro Forma EBITDA for the most recently ended four full fiscal quarters for which        assets and liabilities denominated in foreign currencies;                                           internal financial statements of the Borrower are available immediately preceding the date of                                                                                                            determination; provided, however,  that  the pro  forma  calculation  of  the  Consolidated  Net  (j)   any unrealized foreign currency translation or transaction gains or losses in respect of            Senior Secured Leverage Ratio shall not give effect to (i) any Indebtedness incurred on the        Indebtedness or other obligations of the Borrower or any Restricted Subsidiary owing                date  of  determination  pursuant  to  Section  4.04(b)  or  (ii)  the  discharge  on  the  date  of        to the Borrower or any Restricted Subsidiary;                                                       determination of any Indebtedness to the extent that such discharge results from the proceeds                                                                                                            incurred pursuant to Section 4.04(b).  (k)   any  one-time  non-cash  charges  or  any  increases  in  amortization  or  depreciation        resulting  from  purchase  accounting,  in  each  case,  in  relation  to  any  acquisition  of     For the avoidance of doubt, in determining Consolidated Net Senior Secured Leverage Ratio,        another  Person  or  business  or  resulting  from  any  reorganization  or  restructuring          no cash or Cash Equivalents shall be included that are the proceeds of Indebtedness in respect        involving the Borrower or its Subsidiaries;                                                         of  which  the  calculation  of  the  Consolidated  Net  Senior  Secured  Leverage  Ratio  is  to  be                                                                                                            made.  (l)   any goodwill or other intangible asset impairment charge or write-off; and                                                                                                              Contingent Obligations (m)   the impact of capitalized, accrued or accreting or pay-in-kind interest or principal on             guaranteeing in any manner, whether directly or indirectly, any operating lease, dividend or        Subordinated Shareholder Funding.                                                                   other  obligation  that  d   Consolidated  Net  Leverage         the  sum,  without  duplication,  of  the  aggregate                 contingent:  outstanding  Specified  Indebtedness  of  the  Borrower  and  its  Restricted  Subsidiaries  on  a  consolidated  basis  (excluding  (i) Hedging  Obligations  and  (ii)  any  revolving  Indebtedness        (a)    to purchase any such primary obligation or any property constituting direct or indirect  Incurred pursuant to Section 4.04 in an amount not to exceed the greater of (x) $75 million                      security therefor;  and (y) 33.3% Pro Forma EBITDA for the most recently ended four full fiscal quarters for  which internal financial statements of the Borrower are available immediately preceding the               (b)    to advance or supply funds:  date  of  determination),  less  (B) the  aggregate  amount of  cash  and  Cash  Equivalents  of  the  Borrower and the Restricted Subsidiaries on a consolidated basis.                                                (i)   for the purchase or payment of any such primary obligation; or    Consolidated  Net  Leverage  Ratio                                   the  ratio  of                             (ii)  to  maintain  the  working  capital  or  equity  capital  of  the  primary  obligor  or  (x) Consolidated  Net  Leverage  at  such  date  to  (y) the  aggregate  amount  of  Pro  Forma                        otherwise to maintain the net worth or solvency of the primary obligor; or EBITDA  for  the  most  recently  ended  four  full  fiscal  quarters  for  which  internal  financial  statements  of  the  Borrower  are  available  immediately  preceding  the date  of  determination;       (c)    to purchase property, securities or services primarily for the purpose of assuring the  provided, however,  that  the pro  forma  calculation  of  the  Consolidated  Net  Leverage  Ratio               owner  of any such primary  obligation of the ability of the primary obligor to  make  shall not give effect to (i) any Indebtedness incurred on the date of determination pursuant to                  payment of such primary obligation against loss in respect thereof.  Section 4.04(b) or (ii) the discharge on the date of determination of any Indebtedness to the  extent that such discharge results from the proceeds incurred pursuant to Section 4.04(b).                 Credit Facility                                                                                                           debt facilities, arrangements, instruments, trust deeds, note purchase agreements or indentures  For the avoidance of doubt, in determining Consolidated Net Leverage Ratio, no cash or Cash               or commercial paper facilities and overdraft facilities (including  this Agreement) with banks,  Equivalents shall be included that are the proceeds of Indebtedness in respect of which the               institutions, funds  or investors providing for revolving credit loans, term  loans, receivables  calculation of the Consolidated Net Leverage Ratio is to be made.                                         financing (including through the sale of receivables to such institutions or to special purpose                                                                                                            entities  formed  to  borrow  from  such  institutions  against  such  receivables),  notes,  bonds,   Consolidated  Net  Senior  Secured  Leverage                                                             debentures,  letters  of  credit  or  other  Indebtedness,  in  each  case,  as  amended,  restated,  outstanding  Senior  Secured  Indebtedness  of  the  Borrower  and  its  Restricted  Subsidiaries         modified,  renewed,  refunded,  replaced,  restructured,  refinanced,  repaid,  increased  or  (excluding (i) Hedging Obligations and (ii) any revolving Indebtedness Incurred pursuant to               extended in whole or in part from time to time (and whether in whole or in part and whether  Section  4.04  in  an  amount  not  to  exceed  the  greater  of  (x) $75 million  and  (y) 33.3%  Pro    or not with the original administrative agent and lenders or another administrative agent or  Forma  EBITDA  for  the  most  recently  ended  four  full  fiscal  quarters  for  which  internal        agents or trustees or other banks, institutions or investors and whether provided under one or  financial  statements  of  the  Borrower  are  available  immediately  preceding  the  date  of           more credit or other agreements, indentures, financing agreements or otherwise) and in each  determination), less (B) the aggregate amount of cash and Cash Equivalents of the Borrower                case including all agreements, instruments and documents executed and delivered pursuant to  and the Restricted Subsidiaries on a consolidated basis.                                                  or in connection with the foregoing (including any notes and letters of credit issued pursuant                                                                                                            thereto  and  any  Guarantee  and  collateral  agreement,  patent  and  trademark  security                                                                                                            agreement,  mortgages  or  letter  of  credit  applications  and  other  Guarantees,  pledges,                                                                               48                                                                                                         49                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            agreements, security agreements and collateral documents).  Without limiting the generality               (c)    is or may become (in accordance with its terms) upon the occurrence of certain events                                                                                                                   or otherwise redeemable or repurchasable for cash or in exchange for Indebtedness at  changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (2)                       the option of the holder of the Capital Stock in whole or in part,  adding  Subsidiaries  of  the  Borrower  as  additional  borrowers  or  guarantors  thereunder,  (3)  increasing  the  amount  of  Indebtedness  Incurred  thereunder  or  available  to  be  borrowed                in each case, on or prior to the earlier of (a) the Stated Maturity of the Term Loans or  thereunder or (4) otherwise altering the terms and conditions thereof.                                          (b) the date on which there are no Loans outstanding; provided, however, that (i) only                                                                                                                  the  portion  of  Capital  Stock  which  so  matures  or  is  mandatorily  redeemable,  is  so   Currency  Agreement                                                 e  contract,                               convertible  or  exchangeable  or is  so  redeemable  at  the  option  of  the  holder thereof  currency  swap  agreement,  currency  futures  contract,  currency  option  contract,  cap,  floor,             prior to such date will be deemed to be Disqualified Stock and (ii) any Capital Stock  ceiling, collar, currency derivative or other similar agreement to which such Person is a party                 that would constitute Disqualified Stock solely because the holders thereof have the  or beneficiary.                                                                                                 right to require the Borrower to repurchase such Capital Stock upon the occurrence of                                                                                                                  a change of control or asset sale (howsoever defined or referred to) shall not constitute   Default                            er giving notice or with the passage of time or both                        Disqualified  Stock  if  any  such  redemption  or  repurchase  obligation  is  subject  to  would be, an Event of Default.                                                                                  compliance by the relevant Person with Section 4.05.    Designated Non-Cash Consideration                                                                         Dollar Equivalent faith by the Borrower ) of non-cash consideration received by the Borrower or a Restricted                         Other  Currency Subsidiary in connection with an Asset Disposition that is so designated as Designated Non-               amount of dollars obtained by converting such Other Currency involved in such computation                                                                                                            into dollars at the spot rate for the purchase of dollars with the Other Currency as published  valuation,  less  the  amount  of  cash,  Cash  Equivalents  or  Temporary  Cash  Investments                                                                                  Times  is  no  received  in  connection  with  a  subsequent  payment,  redemption,  retirement,  sale  or  other        longer published, or if such information is no longer available in The Financial Times, such  disposition  of  such  Designated  Non-Cash  Consideration.   A  particular  item  of  Designated         source as may be selected in good faith by the Borrower) on the date of such determination.  Non-Cash  Consideration  will  no  longer  be  considered  to  be  outstanding  when  and  to  the  extent  it  has  been  paid,  redeemed  or  otherwise  retired  or  sold  or  otherwise  disposed  of  in  Domestic  Subsidiary                                 ry  that  is organized  under the  compliance with Section 4.08.                                                                             laws of the United States, any state thereof or the District of Columbia.     Designated Preference Shares                                                                              Equity Contribution than Disqualified Stock) (a) that is issued for cash (other than to the Borrower or a Subsidiary          term loan facility to be entered into by such Affiliate of the Borrower in connection with the  of the Borrower or an employee stock ownership plan or trust established by the Borrower or               Real Estate Portfolio Transfer and an equity contribution (together with any other payment  any such Subsidiary for the benefit of their employees to the extent funded by the Borrower               received  from  BidFair  USA  Inc.  or  any  of  its  Affiliates  by  the  Borrower  or  otherwise                                                                                                            contributed to the equity of the Borrower, in each case, in connection with the Transactions                                                                                                            on or before the Closing Date) from BidFair USA Inc.  Proceeds of which are excluded from the calculation set forth in Section 4.05(a)(c)(ii).                                                                                                             Equity  Offering  Disinterested Director                                                                                   (y) Capital  Stock  or  other  securities  of  a  Parent  or  an  Affiliate,  the  proceeds  of  which  are  Board of Directors having no material direct or indirect financial interest in or with respect to         contributed as Subordinated Shareholder Funding or to the equity of the Borrower or any of  such  Affiliate  Transaction.  A  member  of  the  Board  of  Directors  of  the  Borrower  shall  be     its Restricted Subsidiaries, in each case other than:   Stock of the Borrower or any Parent or any options, warrants or other rights in respect of such           (a)    Disqualified Stock;  Capital Stock.                                                                                                            (b)    Designated Preference Shares;   Disqualified Stock which by its terms (or by the terms of any security into which it is convertible or for which it          (c)    offerings registered on Form S-8 (or any successor form) under the Securities Act or  is exchangeable) or upon the happening of any event:                                                             any similar offering in other jurisdictions;   (a)   matures  or  is  mandatorily  redeemable  for  cash  or  in  exchange  for  Indebtedness            (d)    any such sale to an Affiliate of the Borrower, including the Borrower or a Restricted        pursuant to a sinking fund obligation or otherwise;                                                        Subsidiary; and   (b)   is  convertible  or  exchangeable  for  Indebtedness  or  Disqualified  Stock  (excluding           (e)    any such sale that constitutes an Excluded Contribution.        Capital  Stock  which  is  convertible  or  exchangeable  solely  at  the  option  of  the        Borrower or a Restricted Subsidiary); or                                                                               50                                                                                                         51                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                             Escrowed Proceeds                                                                                        the  definition  of  Excluded  Subsidiary  would  or  is  likely  to  result  in  material  adverse  tax  Indebtedness paid into an escrow account with an independent escrow agent on the date of                  consequences to the Borrower and the Restricted Subsidiaries, taken as a whole.  the applicable offering or Incurrence pursuant to escrow arrangements that permit the release  of amounts on deposit in such escrow account upon satisfaction of certain conditions or the                fair  market  value                                                                                                           specifically  provided  in  this  Agreement),  may  be  conclusively  established  by  means  of  an  on the amounts held in escrow.                                                                                                            fair market value as determined by such Officer or such Board of Directors in good faith.   Exchange Act           U.S. Securities Exchange Act of 1934, as amended, and the rules  and regulations of the SEC promulgated thereunder, as amended.                                             Fitch                                                                         Excluded Contribution                                                                                     Foreign Subsidiary the Borrower at the time of such contribution or, at the option of the Borrower, at the date of           Domestic Subsidiary.  entry  into  of  a  commitment,  contract  or  resolution  with  respect  to  such  Excluded  Contribution,  and  not  adjusted  for  any  subsequent  changes  in  fair  market  value)  of             GAAP                                    g  principles  set  forth  in  the  opinions  and  marketable  securities  or  property  or  assets  or  Capital  Stock  of  any  Person,  in  each  case,   pronouncements of the Accounting Principles Board of the American Institution of Certified  received  by  the  Borrower  as  capital  contributions  to  the  equity  (other  than  through  the      Public  Accountants  and  statements  and  pronouncements  of  the  Financial  Accounting  issuance  of  Disqualified  Stock  or  Designated  Preference  Shares  of  the  Borrower)  after  the     Standard Boards or in such other statement by such other entity as have been approved by a  Closing Date or from the issuance or sale (other than to the Borrower, a Restricted Subsidiary            significant segment of the accounting profession as in effect from time to time; provided that,  or an employee stock ownership plan or trust established by the Borrower or any Subsidiary                at any date after the Initial Funding Date, the Borrower may make an irrevocable election to  of the Borrower for the benefit of its employees to the extent funded by the Borrower or any  Restricted  Subsidiary)  of  Capital  Stock  (other  than  Disqualified  Stock  or  Designated            of such  election  other than with respect  to Section 4.10  of this  Annex  I  where GAAP  will  Preference Shares) or Subordinated Shareholder Funding of the Borrower after the Effective                continue to mean as in effect from time to time; and provided further that, at any time after  Date, in each case, (i) other than the Equity Contribution and (ii) to the extent designated as           the Initial Funding Date, the Borrower may elect to apply IFRS in lieu of GAAP and, upon                                                                                                            any such election, references herein to GAAP shall thereafter be construed to mean IFRS as                                                                                                            in effect (except as otherwise provided for in this Agreement) on the date of such election or,   Excluded Subsidiary                                                                                      with respect to Section 4.10 of Annex I as in effect from time to time; provided further that  the Borrower, (2) any CFC, (3) any Subsidiary that is a direct or indirect Subsidiary of (i) a            any such election to apply IFRS, once made, shall be irrevocable and that upon first reporting  CFC or (ii) a CFC Holdco, (4) a CFC Holdco, (5) any Subsidiary, including any regulated                   its  fiscal  year  results  under  IFRS,  it  shall  restate  the  financial  statements  required  to  be  entity that is subject to net worth or net capital or similar capital and surplus restrictions, that      delivered  under  Section  4.10  of  Annex  I  on  the  basis  of  IFRS  for  the  fiscal  year  ending  is prohibited or restricted by applicable law, accounting policies or by contractual obligation           immediately prior to the first fiscal year for which financial statements have been prepared on  existing  on  the  Closing  Date  and  any  amendments,  restatements,  modifications,  renewals,         the basis of IFRS.  The Borrower shall give notice of any such election to the Administrative  supplements,  refundings,  replacements  or  refinancings  of  such  agreements  (provided  that          Agent.  such contractual obligations  (A) were not incurred in contemplation of the Acquisition (or,  with respect to any Subsidiary acquired by the Borrower or a Restricted Subsidiary after the               Global Trading Loan Closing Date (and so long as such contractual obligation was not incurred in contemplation of             Oatshare in aggregate principal amount of £29.1 million.  such  acquisition),  on  the  date  such  Subsidiary  is  so  acquired)  or  (B)  do  not  extend  such  prohibition or extension to any non-Excluded Subsidiary) from providing a Guarantee, or if                 Group                           estricted Subsidiaries.  such  Guarantee  would  require  governmental  (including  regulatory)  or  third  party  consent,                                                                                                             Guarantee approval, license or authorization, (6) any special purpose securitization vehicle (or similar                                                                                                            indirectly guaranteeing any Indebtedness of any other Person, including any such obligation,  entity),  including  any  Receivables  Entity,  (7)  any  not-for-profit  Subsidiary,  (8)  any  other                                                                                                            direct or indirect, contingent or otherwise, of such Person:  Subsidiary with respect to which, in the reasonable judgment of the Borrower, the burden or  cost (including any adverse tax consequences) of providing the Guarantee will outweigh the                (a)    to purchase or pay (or advance or supply funds for the purchase or payment of) such  benefits to be obtained by the Lenders therefrom, (9) each Unrestricted Subsidiary and (10)                      Indebtedness  of  such  other  Person  (whether  arising  by  virtue  of  partnership  any other Subsidiary that is not required to provide a Loan Guaranty or Collateral as a result                   arrangements, or by agreements to keep-well, to purchase assets, goods, securities or  of the application of the Agreed Security Principles; provided, that any such Subsidiary that                    services, to take-or-pay or to maintain financial statement conditions or otherwise); or  is  an  Excluded  Subsidiary  pursuant  to  clause  (8)  above  shall  cease  to  be  an  Excluded  Subsidiary at any time such Subsidiary guarantees Indebtedness of the Borrower or any other               (b)    entered  into  primarily  for  purposes  of  assuring  in  any  other  manner  the  obligee  of  Guarantor,  and provided further,  clauses  (2),  (3)  and  (4)  of  this  definition  shall  not  apply         such  Indebtedness  of  the  payment  thereof  or  to  protect  such  obligee  against  loss  in  unless the  Borrower reasonably determines that  the exclusion  of  any such Subsidiary from                     respect thereof (in whole or in part),                                                                                52                                                                                                         53                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                                  provided, however                                                                                          to  trade  payables),  in  each  case  only  to  the  extent  that  the  underlying  obligation  in        collection  or  deposit  in  the  ordinary  course  of  business  or  any  guarantee  of                   respect of which the instrument was issued would be treated as Indebtedness;                                                        corresponding meaning.                                                                                                            (d)    the principal component of all obligations, or liquidation preference, of such Person   Hedging Obligations                                                                                             with respect to any Disqualified Stock or, with respect to any Restricted Subsidiary,  Interest Rate Agreement, Currency Agreement or Commodity Hedging Agreement.                                      any Preferred Stock (but excluding, in each case, any accrued dividends);    IFRS                                                      ued by the International                       (e)    the principal component of all Indebtedness of other Persons secured by a Lien on any  Accounting Standards Board or any successor board or agency as endorsed by the European                          asset of such Person, whether or not such  Indebtedness is assumed by such Person;  Union.                                                                                                           provided, however, that the amount of such Indebtedness will be the lesser of (a) the                                                                                                                   fair market value of such asset at such date of determination (as determined in good   Immaterial  Subsidiary                                                                                          faith by the Borrower) and (b) the amount of such Indebtedness of such other Persons;  Subsidiary that holds no more than 3% of the Total Assets of the Borrower and its Restricted  Subsidiaries, taken as a whole; provided, however, that if all of such Immaterial Subsidiaries            (f)    Guarantees  by  such  Person  of  the  principal  component  of  Indebtedness  of  other  in  the  aggregate  hold  assets  in  excess  of  3%  of  the  Total  Assets  of  the  Borrower  and  its        Persons  to  the  extent  Guaranteed  by  such  Person  (other  than  Guarantees  issues  Restricted Subsidiaries, then only the Restricted Subsidiaries with the smallest percentage of                                                                                assets of the Borrower and its Restricted Subsidiaries (not exceeding 3% individually or in                                                                                                            (g)    to the extent not otherwise included in this definition, net obligations of such Person                                                                                                                   under  Currency  Agreements,  Commodity  Hedging  Agreements  and  Interest  Rate   Incur                            er into any Guarantee of, incur, extend or otherwise                           Agreements  (the  amount  of  any  such  obligations  to  be  equal  at  any  time  to  the  become liable for; provided, however, that other than in the case of any action being taken in                   termination value of such agreement or arrangement giving rise to such obligation that  connection with a Limited Condition Transaction, which shall be governed by Section 1.05 of                      would be payable by such Person at such time).  the Credit Agreement and any Indebtedness or Lien Incurred pursuant to the Section 4.19 of  this  Annex  I  which  shall  be  governed  by  the  provisions  thereof,  (1)  any  Indebtedness  or  Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary                      any  lease, concession or  license of property  (or  Guarantee  thereof) which would be  (whether by merger, consolidation, acquisition or otherwise) will be deemed to be Incurred                      considered  an  operating  lease  under  GAAP,  (iii)  prepayments  of  deposits  received  by the Borrower or such Restricted Subsidiary at the time it becomes a Restricted Subsidiary                    from  clients  or  customers  in  the  ordinary  course  of  business,  (iv)  any  pension                                                                   foregoing and (2)                              obligations, (v) Contingent Obligations, (vi) receivables sold or discounted, whether  any Indebtedness pursuant to any Credit Facility, bridge facility, revolving credit or similar                  recourse or non-recourse, including, for the avoidance of doubt, any obligations under                                                                         provided                                 or  in  respect  of  Qualified  Receivables  Financing  (including,  without  limitation,  further that, the Borrower in its sole discretion may elect that (x) any Indebtedness or portion                guarantees by a Receivables Entity of the obligations  of another  Receivables  Entity  thereof  pursuant  to  any  Credit  Facility,  bridge  facility,  revolving  credit  or  similar  facility      and  any  indebtedness  in  respect  of  Limited  Recourse),  (vii)  obligations  under  any                                                                                                                  license, permit or other approval (or Guarantees given in respect of such obligations)  commitments  in  relation  to  any  such  facility  and/or  (y)  any  Indebtedness,  the  proceeds  of          Incurred prior to the Initial Funding Date or in the ordinary course of business, (viii)  which are cash-                                                                                                 non-interest  bearing  installment  obligations  and  accrued  liabilities  Incurred  in  the  no longer cash-collateralized.                                                                                  ordinary  course  of  business  that  are  not  more  than  120  days  past  due,  (ix)                                                                                                                  Indebtedness  in  respect  of  the  Incurrence  by  the  Borrower  or  any  Restricted   Indebtedness                                                  mination  (without                               Subsidiary of Indebtedness in respect of standby letters of credit, performance bonds  duplication):                                                                                                   or surety bonds provided by the Borrower or any Restricted Subsidiary in the ordinary                                                                                                                  course of business to the extent such letters of credit or bonds are not drawn upon or,  (a)   the principal of indebtedness of such Person for borrowed money;                                          if and to the extent drawn upon are honored in accordance with their terms and if, to                                                                                                                  be reimbursed, are reimbursed no later than the fifth Business Day following receipt  (b)   the principal of obligations of such Person evidenced by bonds, debentures, notes or                      by  such  Person  of  a  demand  for  reimbursement  following  payment  on  the  letter  of        other similar instruments;                                                                                credit or bond, (x) any obligations to pay the deferred and unpaid purchase price for                                                                                                                  assets acquired or services supplied or otherwise owed to the Person (or any assignee  (c)   all reimbursement obligations of such Person in                                                                                                                  thereof)  from  whom  such  assets  are  acquired  or  who  supplies  such  services  in        acceptances or other similar instruments (the amount of such obligations being equal                                                                                                                  accordance  with  the  terms  pursuant  to  which  the  relevant  assets  were  or  are  to  be        at  any time to  the aggregate then undrawn and  unexpired amount of  such  letters of                                                                                                                  acquired  or  services  were  or  are  to  be  supplied,  (xi)  any  payroll  accruals  and  (xii)        credit  or  other  instruments  plus  the  aggregate  amount  of  drawings  thereunder  that                                                                                                                  Indebtedness Incurred by the Borrower or a Restricted Subsidiary in connection with a        have not been reimbursed) (except to the extent such reimbursement obligations relate                                                                                                                  transaction where (A) such Indebtedness is borrowed from a bank or trust company,                                                                                                                  having  a  combined  capital  and  surplus  and  undivided  profits  of  not  less  than  $250                                                                               54                                                                                                         55                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                                  million,  whose  debt  has  a  rating  immediately  prior  to  the  time  such  transaction  is     agreement  or  other  similar  agreement  or  arrangement  to  which  such  Person  is  party  or  a        entered  into,  of  at  least  A  or  the  equivalent  thereof  by  S&P,  A2  or  the  equivalent   beneficiary.                                          lent  thereof by  Fitch  and  (B)  a  substantially        concurrent Investment is made by the Borrower or a Restricted Subsidiary in the form                 Investment       of cash  deposited  with the lender of such  Indebtedness, or a Subsidiary  or Affiliate            Persons  (including  Affiliates)  in  the  form  of  any  direct  or  indirect  advance,  loan  or  other        thereof,  in  amount  equal  to  such  Indebtedness.   For  the  avoidance  of  doubt  and          extensions  of  credit  (other  than  advances  or  extensions  of  credit  to  customers,  suppliers,                                                                                                            directors,  officers  or  employees  of  any  Person  in  the  ordinary  course  of  business,  and        and  trade  payables  and  any  obligations  under  guarantees  issued  in  connection  with        excluding  any  debt  or  extension  of  credit  represented  by  a  bank  deposit  other  than  a  time        various operating and telecommunications licenses.                                                  deposit,  but  including  any  Guarantees  incurred  pursuant  to  clause  (t)  of  the  definition  of         Subject to Section 1.05 of the Credit Agreement and Section 4.19 of this Annex I, the               property to others or any payment for property or services for the account or use of others), or        amount of Indebtedness of any Person at any time in the case of a revolving credit or               the Incurrence of a Guarantee of any obligation of, or any purchase or acquisition of Capital        similar  facility  shall  be  the  total  amounts  of  funds  borrowed  and  then  outstanding.     Stock, Indebtedness or other similar instruments issued by, such other Persons and all other        The amount of Indebtedness of any Person at any date shall be determined as set forth               items that are or would be classified as investments on a balance sheet (excluding any notes        above or otherwise provided in this Agreement, and (other than with respect to letters              thereto) prepared on the basis of GAAP; provided, however, that endorsements of negotiable        of credit or Guarantees or Indebtedness specified in clauses (e), (f) or (g) above) shall           instruments and documents in the ordinary course of business will not be deemed to be an        equal  the  amount  thereof  that  would  appear  on  a  balance  sheet  of  such  Person           Investment.  If the Borrower or any Restricted Subsidiary issues, sells or otherwise disposes        (excluding any notes thereto) prepared on the basis of GAAP.                                        of any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect                                                                                                            thereto, such Person is no longer a Restricted Subsidiary, any Investment by the Borrower or        Notwithstanding  the  above  provisions,  in  no  event  shall  the  following  constitute          any Restricted Subsidiary in such Person remaining after giving effect thereto will be deemed        Indebtedness:                                                                                       to be a new Investment equal to the fair market value of the Capital Stock of such Subsidiary                                                                                                            not sold or disposed of in an amount determined as provided in Section 4.05(c).        (i)   in connection with the purchase by the Borrower or any Restricted Subsidiary              of any business, any post-closing payment adjustments to which the seller may                 For purposes of Section 4.05:              become entitled to the extent such payment is  determined by a final closing              balance sheet or such payment depends on the performance of such business                     (a)    Investment             after the closing;                                                                                   in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair                                                                                                                   market  value  of  the  net  assets  of  such  Restricted  Subsidiary  at  the  time  that  such        (ii)                                                                                                       Restricted  Subsidiary  is  designated  an  Unrestricted  Subsidiary; provided, however,              compensation claims, early retirement or termination obligations, pension fund                       that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower              obligations or contributions or similar claims, obligations or contributions or                      will  be  deemed  to  continue  to  have  a              social security or wage Taxes;                                                                                                                    Subsidiary at the time of such redesignation less (b) the portion (proportionate to the        (iii) parallel  debt  obligations,  to  the  extent  such  obligations  mirror  other                                                         idiary)  of  the  fair  market  value  of  the  net              Indebtedness;                                                                                        assets  (as  conclusively  determined  by  an  Officer  or  the  Board  of  Directors  of  the                                                                                                                   Borrower in good faith) of such Subsidiary at the time that such Subsidiary is so re-       (iv)  Capitalized Lease Obligations; or                                                                                                                   designated a Restricted Subsidiary; and        (v)   franchise and performance surety bonds or guarantees.                                                                                                            (b)    any property transferred to or from an Unrestricted Subsidiary will be valued at its fair   Independent  Financial  Advisor                                                                                 market value at the time of such transfer (or if earlier at the time of entering into an  international  standing  or  any  third  party  appraiser  of  international  standing;  provided,               agreement  to  sell  such  property),  in  each  case  as  determined  in  good  faith  by  an  however, that such firm or appraiser is not an Affiliate of the Borrower.                                        Officer or the Board of Directors of the Borrower.    Initial Funding Date Unrestricted Subsidiaries                                                                 The amount of any  Investment  outstanding at any time shall be  the original cost of  Stock  of  1334  York  LLC  is  not  transferred  to  an  Affiliate  of  the  Borrower  that  is  not  a  member of the Group on the Initial Funding Date, 1334 York LLC.                                                 interest  payment,  return  of  capital,  repayment  or  other  amount  or  value  received  in                                                                                                                  respect of such Investment.   Interest  Rate  Agreement                     y  Person,  any  interest  rate  protection  agreement,  interest  rate  future  agreement, interest  rate option agreement,  interest rate  swap       Investment Grade Securities       agreement,  interest  rate  cap  agreement,  interest  rate  collar  agreement,  interest  rate  hedge                                                                                56                                                                                                         57                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            (a)   securities issued or directly and fully Guaranteed or insured by the United States or               Restricted  Subsidiaries  (other  than  a  Receivables  Entity)  shall  not  exceed  25%  of  the        Canadian  government  or  any  agency  or  instrumentality  thereof  (other  than  Cash             principal amount of such Indebtedness at any time.        Equivalents);                                                                                                             Loan  Guarantee (b)   securities issued or directly and fully guaranteed or insured by the United Kingdom,  a             any Obligations with respect to Swap Contracts of Treasury Services Agreements), executed        member  state  of  the  European  Union,  Switzerland,  Norway  or  any  agency  or                 pursuant to the provisions of the Facility Guaranty.          instrumentality thereof (other than Cash Equivalents);                                                                                                             London Properties                                         -5 St. George Street, (ii)  (c)   debt                                                -                                               6-7 St. George Street, (iii) 8  St.  George Street,  (iv)  9  St.  George Street,  (v) 10  St.  George                                        -                                                                   Street, (vi) 34-35 New Bond Street, and (vii) 36 New Bond Street, and (viii) 40-42 Bourdon                                                                                                            Street, which collectively contain the main salesrooms, exhibition spaces, and administrative        exists,  the  equivalent  of  such  rating  by  any  other  Nationally  Recognized  Statistical     offices of our U.K. operations.        Rating  Organization,  but  excluding  any  debt  securities  or  instruments  constituting        loans or advances among the Borrower and its Subsidiaries; and                                       Management Advances                                    Guarantees with respect to                                                                                                            loans  or advances made  to, directors,  officers, employees or consultants of any Parent,  the  (d)   investments in any fund that invests exclusively in investments of the type described               Borrower  or any Restricted Subsidiary:        in clauses (a), (b) and (c) above which fund may also hold cash and Cash Equivalents        pending investment or distribution.                                                                 (a)    in respect of travel, entertainment or moving related expenses Incurred in the ordinary                                                                                                                   course  of   Investor        the  ultimate  controlling  shareholder  of  Next  Alt  S.à  r.l.  on  the  Initial             Capital  Stock  or  Subordinated  Shareholder  Funding  (or  similar  obligations)  of  the  Funding Date.                                                                                                    Borrower, its Restricted Subsidiaries or any Parent (i) not to exceed an amount (net of                                                                                                                   repayments of any such loans or advances) equal to $20 million in any calendar year   Investor Affiliate                                                                                              (with  unused  amounts  in  any  calendar  year  being  carried  over  to  the  succeeding                                                                                                                   calendar years; provided that the aggregate Management Advances made under this  limited partnerships or entities managed or controlled by the Investor or any of his immediate                   sub-clause (b)(i) do not exceed $40 million in any fiscal year) or (ii) with the approval                                                                                                                   of the Board of Directors of the Borrower;   Affiliates and direct or indirect Subsidiaries or any trust in respect of which any such persons          (b)    in  respect  of  moving  related  expenses  Incurred  in  connection  with  any  closing  or  is a trustee, (iv) any partnership of which the Investor or any of his immediate family, or any                  consolidation of any facility or office; or                                                                               is                                                                                                            (c)    (in the case of this clause (c) not exceeding $15 million in the aggregate outstanding  respective Affiliates or direct or indirect Subsidiaries, and (v) any trust, fund or other entity                at any time.  which is managed by, or is under the control of, the Investor or any of his immediate family,                                                                                                             Management  Investors the Borrower or any of its Subsidiaries.                                                                  other members of the management of or consultants to any Parent, the Borrower, or any of                                                                                                            their  respective  Subsidiaries,  or  spouses,  family  members  or  relatives thereof, or  any  trust,   IPO Entity       the Parent Guarantor or any Parent (or any Affiliate or successor of any                partnership  or  other  entity  for  the  benefit  of  or  the  beneficial  owner  of  which  (directly  or  such Person) provided that the IPO Entity shall be an entity which will issue shares, or whose            indirectly)  is  any  of  the  foregoing,  or  any  of  their  heirs,  executors,  successors  and  legal  shares are to be sold, pursuant to a Public Offering.                                                     representatives,  who  at  any  date  beneficially  own  or  have  the  right  to  acquire,  directly  or                                                                                                            indirectly, Capital Stock of the Borrower, any Restricted Subsidiary or any Parent.   Lien kind (including any conditional sale or other title retention agreement or lease in the nature             Market  Capitalization                                      umber  of  issued  and  thereof).                                                                                                 outstanding  shares  of  Capital  Stock of the  IPO  Entity on the date of the  declaration of the                                                                                                            relevant dividend or purchase, repurchase or other acquisition or retirement of common stock   Limited  Recourse                                                                                        or common equity interests multiplied by  (ii) the arithmetic mean of the closing prices per  account,  guarantee  or  other  credit  enhancement  issued  by  the  Borrower  or  any  of  its          share of such Capital Stock for the 30 consecutive trading days immediately preceding the  Restricted Subsidiaries (other than a Receivables Entity) in connection with the incurrence of            date  of  declaration  of  such  dividends  or  purchase,  repurchase  or  other  acquisition  or  Indebtedness  by  the  Borrower  or  a  Receivables  Entity  under  a  Qualified  Receivables             retirement of common stock or common equity interests.   Financing;  provided  that,  the  aggregate  amount  of  such  letter  of  credit  reimbursement  obligations  and  the  aggregate  available  amount  of  such  revolving  loan  commitments,  cash                                                Inc. or any of its successors or assigns that is a  collateral  accounts,  guarantees  or  other  such  credit  enhancements  of  the  Borrower  and  its     Nationally Recognized Statistical Rating Organization.                                                                               58                                                                                                         59                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                             Nationally  Recognized Statistical Rating Organization     the  same  meaning  as                        such Investment), minus any amounts utilized pursuant to clause (a) and  used in Section 3(a)(62) of the Exchange Act.                                                                                     Net Available Cash                                                                                        Officer any cash payments received by way of deferred payment of principal pursuant to a note or                  Chief  Executive  Officer,  the  President,  the  Chief  Operating  Officer,  the  Chief  Financial  installment receivable or otherwise and net proceeds from the sale or other disposition of any            Officer, any Vice President, the Treasurer or the Secretary (a) of such Person or (b) if such  securities received as consideration, but only as and when received, but excluding any other              Person  is  owned  or managed  by a  single  entity,  of such  entity,  or  (2)  any  other individual  consideration received in the form of assumption by the acquiring person of Indebtedness or  other  obligations  relating  to  the  properties  or  assets  that  are  the  subject  of  such  Asset   such Person.  Disposition or received in any other non-cash form) therefrom, in each case net of:   (a)   all  legal,  accounting,  investment  banking,  title  and  recording  tax  expenses,               of such Person.        commissions and other fees and expenses Incurred, and all Taxes paid or required to        be paid or accrued as a liability under GAAP (after taking into account any available                Opinion of Counsel     ns a written opinion from legal counsel reasonably satisfactory to        tax credits or deductions and any Tax Sharing Agreements), as a consequence of such                 the  Administrative  Agent,  which  opinion  may  contain  customary  assumptions  and        Asset Disposition;                                                                                  qualifications.  The counsel may be an employee of or counsel to any Parent, the Borrower or                                                                                                            any of their Subsidiaries.  (b)   all payments made on any Indebtedness which is secured by any assets subject to such        Asset  Disposition,  in  accordance  with  the  terms  of  any  Lien  upon  such  assets,  or        Parent       which  must  by  its  terms,  or  in  order  to  obtain  a  necessary  consent  to  such  Asset     and any holding companies established by any Permitted Holder for purposes of holding its        Disposition,  or  by  applicable  law,  be  repaid  out  of  the  proceeds  from  such  Asset       investment in any Parent.        Disposition;                                                                                                             Parent Expenses         (c)   all distributions and other payments required to be made to minority interest holders        (other  than  any  Parent,  the  Borrower  or  any  of  their  respective  Subsidiaries)  in        (a)    costs  (including  all  professional  fees  and  expenses)  Incurred  by  any  Parent  in        Subsidiaries or joint ventures as a result of such Asset Disposition; and                                  connection with reporting obligations under or otherwise Incurred in connection with                                                                                                                   compliance with applicable laws, rules or regulations of any governmental, regulatory  (d)   the  deduction  of  appropriate  amounts  required  to  be  provided  by  the  seller  as  a               or self-regulatory body or stock exchange, this Agreement or any other agreement or        reserve,  on  the  basis  of GAAP,  against  (a) any  liabilities  associated  with  the assets            instrument  relating  to  Indebtedness  of  a  Parent,  (excluding  principal  and  interest        disposed  in  such  Asset  Disposition  and  retained  by  the  Borrower  or  any  Restricted              under  any  such  agreement  or  instrument  relating  to  obligations  of  the  Parent),  the        Subsidiary after such Asset Disposition; or (b) any purchase price adjustment or earn-                     Borrower or any Restricted Subsidiary, including in respect of any reports filed with        out in connection with such Asset Disposition.                                                             respect  to  the  Securities  Act,  Exchange  Act  or  the  respective  rules  and  regulations                                                                                                                   promulgated thereunder;   Net  Cash  Proceeds                                       le  of  Capital  Stock  or  Subordinated  Shareholder  Funding,  any  Incurrence  of any  Indebtedness  or  any  sale  of  any        (b)    customary  indemnification  obligations  of  any  Parent  owing  to  directors,  officers,                                                                                                                   employees  or  other  Persons  under  its  charter  or  by-laws  or  pursuant  to  written                                                 es,  discounts  or  commissions  and                              agreements with any such Person to the extent relating to a Parent, the Borrower or  brokerage, consultant and other fees and charges actually  Incurred in connection with such                      their respective Subsidiaries;  issuance or sale and net of taxes paid or payable as a result of such issuance or sale  (after  taking into account any available tax credit or deductions and any tax sharing arrangements).             (c)    obligations  of  any  Parent  in  respect  of  director  and  officer  insurance  (including                                                                                                                   premiums therefor) to the extent relating to a Parent, the Borrower or their respective   New  Bond  Property                               -35  New  Bond  Street,  London                               Subsidiaries  and  reasonable  fees  and  reimbursement  of  expenses  to,  and  customary                                                                                                                   indemnities  and  employee  benefit  and  pension  expenses  provided  on  behalf  of,  U.K. operations.                                                                                                 directors,  officers,  consultants  or  employees  of  the  Borrower,  any  Restricted                                                                                                                   Subsidiary  or  any  Parent  (whether  directly  or  indirectly  and  including  through  any   Non-Guarantor  Debt  Cap                                                                                        Person owned or controlled by any of such directors, officers or employees);  Stock or Preferred Stock equal to $25 million.                                                                                                            (d)    fees and expenses payable by any Parent in connection with the Transactions;   Non-Loan  Party  Investment  Cap      $25  million,  at  any  one  time  outstanding,  as  determined on a pro forma basis  (including  a pro forma  application  of  the  net  proceeds of          (e)    general  corporate  overhead  expenses,  including  (a)  professional  fees  and  expenses                                                                                                                   and other operational expenses of any Parent related to the ownership or operation of                                                                                60                                                                                                         61                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                                  the  business  of  the  Borrower  or  any  of  the  Restricted  Subsidiaries  including                    beginning of the relevant period, the Consolidated Net Senior Secured Leverage Ratio        acquisitions  or  dispositions  by  the  Borrower  or  a  Subsidiary  permitted  hereunder                 is no greater than 4.50 to 1.00, (b) Indebtedness that is permitted to be Incurred under        (whether or not successful), in each case, to the extent such costs, obligations and/or                    clauses (1), (2)(a) (in the case of (2)(a), to the extent such Guarantee is in respect of        expenses are not paid by another Subsidiary of such Parent or (b) costs and expenses                       Indebtedness otherwise permitted to be secured on the Collateral and specified in this        with  respect  to  any  litigation  or  other  dispute  relating  to  the  Transactions,  or  the          definition of Permitted Collateral Liens), (4)(b) (in the case of (4)(b), only in respect        ownership, directly or indirectly, by any Parent;                                                          of Existing Target Notes that are not repurchased pursuant to the Change of Control                                                                                                                   Tender),  (5) (so  long  as,  in  the  case  of  clause (5),  on  the  date  of  Incurrence  of  (f)                                                                      and to                                  Indebtedness pursuant to such clause (5) and after giving effect thereto on a pro forma        provide for other ordinary course operating costs, including customary salary, bonus                       basis  (including  a  pro  forma  application  of  the  net  proceeds  therefrom)  as  if  such        and other benefits payable to officers and employees of such Parent;                                       Indebtedness had been Incurred at the beginning of the relevant period, either (x) the                                                                                                                   Consolidated  Net  Senior  Secured  Leverage  Ratio  is  no  greater than  4.50  to  1.00  or  (g)   to  reimburse  out-of-pocket  expenses  of  the  Board  of  Directors  of  any  Parent  and                (y) the Consolidated Net Senior Secured Leverage Ratio would not be greater than it        payment of all reasonable out-of-pocket expenses Incurred by any Permitted Holder                          was immediately prior to giving effect to such acquisition or other transaction), (7)(a)        in  connection  with  its  direct  or  indirect  investment  in  the  Borrower  and  its                   (to the extent relating to Currency Agreements or Interest Rate Agreements related to        Subsidiaries;                                                                                              Indebtedness,  (7)(b),  (14) (so  long  as,  in  the  case  of  clause (14),  on  the  date  of                                                                                                                   Incurrence of Indebtedness pursuant to such clause (14) and after giving effect thereto  (h)   other  fees,  expenses  and  costs  relating  directly  or  indirectly  to  activities  of  the            on a pro forma basis (including a pro forma application of the net proceeds therefrom)        Borrower  and  its  Subsidiaries  or  any  Parent  or  any  other  Person  established  for                as  if  such  Indebtedness  had  been  Incurred  at  the  beginning  of  the  relevant  period,        purposes  of  or  in  connection  with  the  Transactions  or  which  holds  directly  or                  together with any Incurrence of Indebtedness pursuant to clause (5) of Section 4.04(b)        indirectly any Capital Stock or Subordinated Shareholder Funding of the Borrower, in                       on  the  date  on  which  Indebtedness  pursuant  to  clause (14)  is  Incurred,  (x) the        an amount not to exceed $5 million in any fiscal year;                                                     Consolidated  Net Senior Secured  Leverage Ratio  is no  greater than 4.50 to  1.0 and                                                                                                                   (y) the Borrower could Incur at least $1.00 of additional Indebtedness under Section  (i)   any Public Offering Expenses;                                                                                                                    4.04(a) and clause (16) under Section 4.04(b) and (c) any Refinancing Indebtedness in  (j)   payments pursuant to any Tax Sharing Agreement in the ordinary course of business                          respect  of  Indebtedness  referred  to  in  the  foregoing  clause (a)  or  (b), provided,        or as a result of the formation and maintenance of any consolidated group for tax or                       however, that (i) such Lien shall rank pari passu or junior to the Liens securing the        accounting purposes in the ordinary course of business; and                                                Loans and the Loan Guarantees (including by virtue of any Intercreditor Agreement                                                                                                                   or an  Additional  Intercreditor  Agreement);  (ii)  in  each  case,  all  property  and  assets  (k)   franchise, excise and similar taxes and other fees, taxes and expenses, in each case,                      (including, without limitation, the Collateral) securing such Indebtedness also secure        required for the Borrower to maintain its operations and paid by the Parent.                               the Loans or the Loan Guarantees on a senior or pari passu basis (including by virtue                                                                                                                   of any Intercreditor Agreement or an Additional Intercreditor Agreement but no such   Pension Plan                                             ltiemployer Plan, which                                Indebtedness shall have priority to the Loans over amounts received from the sale of  is subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.                                  the  Collateral  pursuant  to  an  enforcement  sale  or  other  distressed  disposal  of  such                                                                                                                   Collateral); and (iii) each of the parties thereto will have entered into an Intercreditor   Permitted Asset Swap                                                                                            Agreement or an Additional Intercreditor Agreement.    or useful in a Similar Business or a combination of such assets and cash, Cash Equivalents or  Temporary Cash Investments between the Borrower or any of the Restricted Subsidiaries and                  Permitted Holders another Person; provided that any cash or Cash Equivalents received in excess of the value of             Person who is acting as an underwriter in connection with a public or private offering of  any cash or Cash Equivalents sold or exchanged must be applied in accordance with Section                 Capital Stock of any Parent or the Borrower, acting in such capacity.   4.08.                                                                                                                                                                                                                  Permitted  Investment  Permitted Collateral Liens                                                                               Subsidiaries):   (a)   Liens on the Collateral that are described in one or more of clauses (b), (c), (d), (e),            (a)    Investments in (i) a Restricted Subsidiary (including the Capital Stock of a Restricted        (f),  (h),  (i),  (k),  (l),  (m),  (r),  (t),  (w),  (x),  (aa),  (bb)  and  (ll)  of  the  definition  of Subsidiary)  or  the  Borrower  or  (ii)  any  Person  (including  the  Capital  Stock  of  any                                                                                                                   such Person) that is engaged in any Similar Business and such Person will, upon the                                                                                                                   making of such Investment, become a Restricted Subsidiary; provided that no Loan  (b)   Liens  on  the  Collateral  to  secure  (a) Indebtedness  that  is  permitted  to  be  Incurred            Party may make any  Investment  in  a  Restricted Subsidiary that is not a  Loan Party        under Section 4.04(a) so long as on the date of Incurrence of such Indebtedness and                        under this clause (a) if, and to the  extent that, the aggregate outstanding amount of        after giving effect thereto on a pro forma basis (including a pro forma application of                     Investments made by Loan Parties in Restricted Subsidiaries that are not Loan Parties        the  net  proceeds  therefrom)  as  if  such  Indebtedness  had  been  Incurred  at  the                   would exceed the Non-Loan Party Investment Cap;                                                                                62                                                                                                         63                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            (b)   Investments in another Person if such Person is engaged in any Similar Business and                 (k)    pledges or deposits with respect to leases or utilities provided to third parties in the        as a result of such Investment such other Person is merged, consolidated or otherwise                      ordinary  course  of  business  or  Liens  otherwise  described  in  the  definition  of        combined with or into, or transfers or conveys all or substantially all its assets to, the                                                                                              Borrower  or  a  Restricted  Subsidiary;  provided  that  no  Loan  Party  may  make  any        Investment in a Restricted Subsidiary that is not a Loan Party under this clause (b) if,            (l)    any  Investment  to the extent made  using Capital Stock of the Borrower (other than        and  to  the   extent  that,  the  aggregate  outstanding  amount  of  Investments  made  by               Disqualified  Stock  or  Designated  Preference  Shares),  Subordinated  Shareholder        Loan  Parties  in  Restricted  Subsidiaries  that  are  not  Loan  Parties  would  exceed  the             Funding or Capital Stock of any Parent as consideration;        Non-Loan  Party  Investment  Cap,  except  to  the  extent  such  Restricted  Subsidiary  is        not otherwise required to become a Guarantor pursuant to Section 5.14;                              (m)    any transaction to the extent constituting an Investment that is permitted and made in                                                                                                                   accordance  with  the  provisions  of  Section  4.09(b)  (except  those  described  in  (c)   Investments  in  cash,  Cash  Equivalents,  Temporary  Cash  Investments  or  Investment                   Section 4.09(b)(1),  Section 4.09(b)(3),  Section 4.09(b)(6),  Section 4.09(b)(8),        Grade Securities;                                                                                          Section 4.09(b)(9) and Section 4.09(b)(12));   (d)   Investments  in  receivables  owing  to  the  Borrower  or  any  Restricted  Subsidiary             (n)    Guarantees  not  prohibited  by  Section  4.04  and  (other  than  with  respect  to        created or acquired in the ordinary course of business and payable or dischargeable in                     Indebtedness) guarantees, keepwells and similar arrangements in the ordinary course        accordance with customary trade terms; provided, however, that such trade terms may                        of business, in each case, other than Guarantees of the obligations of the SFS Business        include  such  concessionary  trade  terms  as  the  Borrower  or  any  such  Restricted                   in connection with securitization of the loans described in clause (t) below;        Subsidiary deems reasonable under the circumstances;                                                                                                            (o)    Investments in the Loans, the Senior Secured Notes (and any additional notes issued  (e)   Investments in payroll, travel and similar advances to cover matters that are expected                     under  the  Senior  Secured  Notes  Indenture),  the  Existing  Target  Notes,  or  any  Pari        at  the  time  of  such  advances  ultimately  to  be  treated  as  expenses  for  accounting              Passu Indebtedness of the Borrower or a Subsidiary Guarantor;        purposes and that are made in the ordinary course of business;                                                                                                            (p)    (a) Investments acquired after the Initial Funding Date as a result of the acquisition by  (f)   Management Advances;                                                                                       the Borrower or any Restricted Subsidiary of another Person, including by way of a                                                                                                                   merger,  amalgamation  or  consolidation  with  or  into  the  Borrower  or  any  of  its  (g)   Investments in Capital Stock, obligations or securities received in settlement of debts                    Restricted Subsidiaries in a transaction that is not prohibited by Article V hereof to        created  in  the  ordinary  course  of  business  and  owing  to  the  Borrower  or  any                   the extent that such Investments were not made in contemplation of such acquisition,        Restricted Subsidiary (including obligations of trade creditors and customers), or as a                    merger, amalgamation or consolidation and (b) Investments of a Restricted Subsidiary        result  of  foreclosure,  perfection  or  enforcement  of  any  Lien,  or  in  satisfaction  of            existing  on the date  such  Person  becomes a Restricted Subsidiary to  the  extent  that        judgments or pursuant to any plan of reorganization or similar arrangement including                       such  Investments  were  not  made  in  contemplation  of  such  Person  becoming  a        upon the bankruptcy or insolvency of a debtor or in compromise or resolution of any                        Restricted Subsidiary;         litigation, arbitration or other dispute;                                                                                                             (q)    Investments, taken together with all other Investments  made  pursuant to this clause  (h)   Investments made as a result of the receipt of non-cash consideration from a sale or                       (q)  and  at  any  time  outstanding,  in  an  aggregate  amount  at  the  time  of  such        other disposition of property or assets, including an Asset Disposition, in each case,                     Investment  not  to  exceed  the  greater  of  35%  of  Pro  Forma  EBITDA  for  the  most        that was made in compliance with Section 4.08 and other Investments resulting from                         recently ended four full fiscal quarters for which internal financial statements of the        the  disp                                                                                                  Borrower  are  available  immediately  preceding  the  date  of  determination  and  $75                                                                                                                   million plus the amount of any distributions, dividends, payments or other returns in                                                                                                                   respect of such Investments (without duplication for purposes of Section 4.05) (with  (i)   Investments  in  existence  on,  or  made  pursuant  to  legally  binding  commitments  in                 the fair market value of each Investment being measured in accordance with Section        existence on, the Initial Funding Date and any modification, replacement, renewal or                       4.05); provided, that, if an Investment is made pursuant to this clause in a Person that        extension  thereof;  provided  that  the  amount  of  any  such  Investment  may  not  be                  is  not  a  Restricted  Subsidiary  and  such  Person  subsequently  becomes  a  Restricted        increased except (a) as required by the terms of such Investment as in existence on the                    Subsidiary, such Investment shall thereafter be deemed to have been made pursuant to        Initial Funding Date or (b) as otherwise permitted by this Agreement;                                                                                                             (j)   Currency  Agreements,  Interest  Rate  Agreements,  Commodity  Hedging  Agreements                  (r)    Investments in (a) joint ventures and similar entities and (b) Unrestricted Subsidiaries        and  related  Hedging  Obligations,  which  transactions  or  obligations  are  Incurred                   having an aggregate fair market value, when taken together with all other Investments        pursuant to Section 4.04(b)(7);                                                                            made  pursuant  to  this  clause  (r)  that  are  at  the  time  outstanding,  not  to  exceed  the                                                                                                                   greater of $75 million and 35% of Pro Forma EBITDA for the most recently ended                                                                                                                   four  full  fiscal  quarters  for  which  internal  financial  statements  of  the  Borrower  are                                                                                                                   available  immediately  preceding  the  date  of  determination  at  the  time  of  such                                                                               64                                                                                                         65                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                                  Investment plus the amount of any distributions, dividends, payments or other returns                      obligations (including pledges or deposits securing liability to insurance carriers under        in  respect  of  such  Investments  (without  duplication  for  purposes  of  Section  4.05)               insurance  or  self-insurance  arrangements  and  including  Liens  on  insurance  policies        (with  the  fair  market  value  of  each  Investment  being  measured  in  accordance  with               and proceeds thereof, or other deposits, to secure insurance premium financings), or        Section 4.05(c));                                                                                          in  connection  with  bids,  tenders,  completion  guarantees,  contracts  (other  than  for                                                                                                                   borrowed  money)  or  leases,  or  to  secure  utilities,  licenses,  public  or  statutory  (s)   Investments by the Borrower or a Restricted Subsidiary in a Receivables Entity or any                      obligations, or to secure surety, indemnity, judgment, appeal or performance bonds,        Investment by a Receivables Entity in any other Person, in each case, in connection                        guarantees  of  government  contracts  (or  other  similar  bonds,  instruments  or        with  a  Qualified  Receivables  Financing,  provided,  however,  that  any  Investment  in                obligations), or as security for contested taxes or import or customs duties or for the        any such Person is in the form of a Purchase Money Note, or any equity interest or                         payment  of  rent,  or  other  obligations  of  like  nature,  in  each  case  Incurred  in  the        interests in Receivables and related assets generated by the Borrower or a Restricted                      ordinary course of business;        Subsidiary and transferred to any Person in connection with a Qualified Receivables        Financing or any such Person owning such Receivables;                                               (c)    Liens   (t)   Guarantees by the Borrower and the Subsidiary Guarantors of the obligations of the                         overdue for a period of more than 60 days or that are bonded or being contested in        SFS  Business  in  connection  with  securitization  of  the  loans  originated  by  the  SFS              good faith by appropriate proceedings;        Business subsequent to the Closing Date in an amount not to exceed at any time 15%        of  the  aggregate  principal  amount  of  such  securitized  loans, provided  that  (i)  such      (d)    Liens  for  taxes,  assessments  or  other  governmental  charges  not  yet  subject  to        securitization is on market terms and (ii) such Guarantees (including any fees payable                     penalties for non-payment or which are being contested in good faith by appropriate        to the Borrower and any Subsidiary Guarantor in connection therewith) are on terms                         proceedings; provided that appropriate reserves required pursuant to GAAP have been        not  materially  less  favorable  to  the  Borrower  or  a  Restricted  Subsidiary  than  those            made in respect thereof;                                                             -length  dealings  with  a        Person who is not an Affiliate;                                                                     (e)    (a)  Liens  in  favor  of  issuers  of  surety,  performance  or  other  bonds,  guarantees  or   (u)   Investments made to effect, or otherwise made in connection with, the Transactions to                      borrowed  money)  issued  pursuant  to  the  request  of  and  for  the  account  of  the        the extent described in the Offering Memorandum or any non-cash Investments made                           Borrower  or any Restricted Subsidiary in the ordinary course of its business and (b)        in connection with Permitted Reorganizations; and                                                          Liens  in  connection  with  cash  management  programs  established  in  the  ordinary                                                                                                                   course of business;  (v)   Investments  by  the  Borrower  or  a  Restricted  Subsidiary  in  an  Initial  Funding  Date        Unrestricted Subsidiary, in existence as of the Initial Funding Date.                               (f)    encumbrances, ground leases, easements (including reciprocal easement agreements),                                                                                                                   survey exceptions, or reservations of, or rights of others for, licenses, rights of way,   Permitted Licensing Activities                                                                                  sewers,  electric  lines,  telegraph  and  telephone  lines  and  other  similar  purposes,  or                                                                                                                   zoning, building codes or other restrictions (including minor defects or irregularities  (a)   non-                                                                                                       in title and similar encumbrances) as to the use of real properties or Liens incidental        conducted in the ordinary course of business;                                                              to the conduct of the business of the Borrower and the Restricted Subsidiaries or to                                                                                                                   the  ownership  of  its  properties  which  do  not  in  the  aggregate  materially  adversely  (b)                                                                                                              affect the value of said properties or materially impair their use in the operation of the        trademarks  pursuant to  the  Realogy  License Agreement entered  between  the Target                      business of the Borrower and the Restricted Subsidiaries;        and Realogy Corporation (formerly known as Cendant Corporation) on February 17,        2004; and                                                                                           (g)    Liens  on  assets  or  property  of  the  Borrower  or  any  Restricted  Subsidiary  securing                                                                                                                   Hedging Obligations permitted under this Agreement;  (c)        in Australia and art education services in the United States and the United Kingdom.                (h)    leases,  licenses,  subleases  and  sublicenses  of  assets  (including  real  property  and                                                                                                                   intellectual  property  rights),  in  each  case  entered  into  in  the  ordinary  course  of   Permitted Liens                                                                                                 business;   (a)   Liens  on   assets  or  property  of  a  Restricted  Subsidiary  that  is  not  a  Subsidiary       (i)    Liens arising out of judgments, decrees, orders or awards not giving rise to an Event        Guarantor securing Indebtedness of such Restricted Subsidiary or another Restricted                        of Default and notices of lis pendens and associated rights so long as any appropriate        Subsidiary that is not a Subsidiary Guarantor;                                                             legal  proceedings  which  may  have  been  duly  initiated  for  the  review  of  such                                                                                                                   judgment,  decree,  order,  award  or  notice  have  not  been  finally  terminated  or  the  (b)                                                                                                                   period within which such proceedings may be initiated has not expired;        insurance  laws,  social  security  laws  or  similar  legislation,  or  insurance  related                                                                                66                                                                                                         67                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            (j)   Liens on assets or property of the Borrower or any Restricted Subsidiary (including                        that secured (or, under the written arrangements under which the original Lien arose,        Capital Stock) for the purpose of securing Capitalized Lease Obligations or Purchase                       could secure) the Indebtedness being refinanced or is in respect of property that is or        Money Obligations, or securing the payment of all or a part of the purchase price of,                      could be the security for or subject to a Permitted Lien hereunder;        or  securing  other  Indebtedness  Incurred  to  finance  or  refinance  the  acquisition,        improvement  or  construction  of,  assets  or  property  acquired  or  constructed  in  the        (q)    any  interest or title of a lessor under any Capitalized Lease  Obligation or operating        ordinary  course  of  business;  provided  that  (a)  the  aggregate  principal  amount  of                lease;        Indebtedness secured by such Liens is otherwise permitted to be Incurred under this        Agreement (excluding Indebtedness Incurred pursuant to Section 4.04(a)) and (b) any                 (r)    (a) mortgages, liens, security interest, restrictions, encumbrances or any other matters        such Lien may not extend to any assets or property of the Borrower or any Restricted                       of record that have been placed by any government, statutory or regulatory authority,        Subsidiary  other  than  assets  or  property  acquired,  improved,  constructed  or  leased               developer, landlord or other third party on property over which the Borrower or any        with the proceeds of such Indebtedness and any improvements or accessions to such                          Restricted Subsidiary has easement rights or on any leased property and subordination        assets and property;                                                                                       or similar arrangements relating thereto and (b) any condemnation or eminent domain                                                                                                                   proceedings affecting any real property;  (k)        Liens, rights of set-off or similar rights and remedies as to deposit accounts or other             (s)    any encumbrance or restriction (including put and call arrangements) with respect to        funds  maintained  with  a  depositary  or  financial  institution  (including,  without                   Capital  Stock  of,  or  assets  owned  by,  any  joint  venture  or  similar  arrangement        limitation,  Liens  of  a  collection  bank  arising  under  Section  4-210  of  the  Uniform              pursuant to any joint venture or similar agreement;        Commercial Code);                                                                                                            (t)    Liens  on  property  or  assets  under  construction  (and  related  rights)  in  favor  of  a  (l)   Liens arising from Uniform Commercial Code financing statement filings (or similar                         contractor or developer or arising from progress or partial payments by a third party        filings in other applicable jurisdictions) regarding operating leases entered into by the                  relating to such property or assets;        Borrower and the Restricted Subsidiaries in the ordinary course of business;                                                                                                            (u)    Liens  on  Receivables  Assets  Incurred  in  connection  with  a  Qualified  Receivables  (m)   with  respect  to  the  Borrower  and  its  Restricted  Subsidiaries,  Liens  existing  on  or             Financing;        provided  for  or  required  to  be  granted  under  written  agreements  existing  on  the        Closing Date after giving effect to the Transactions, the SFS Business Transfer and                 (v)    Liens on Escrowed Proceeds for the benefit of the related holders of debt securities        the Permitted Sale and Leaseback Transactions;                                                             (including  the  Senior  Secured  Notes)  or  other  Indebtedness  (or  the  underwriters  or                                                                                                                   arrangers  thereof)  or  on  cash  set  aside  at  the  time  of  the  Incurrence  of  any  (n)   Liens on property, other assets or shares of stock of a Person at the time such Person                     Indebtedness or government securities purchased with such cash, in either case to the        becomes  a  Restricted  Subsidiary  (or  at  the  time  the  Borrower  or  a  Restricted                   extent  such  cash  or  government  securities  prefund  the  payment  of  interest  on  such        Subsidiary  acquires  such  property,  other  assets  or  shares  of  stock,  including  any               Indebtedness and are held in an escrow account or similar arrangement to be applied        acquisition  by  means  of  a  merger,  consolidation  or  other  business  combination                    for such purpose;        transaction  with  or  into  the  Borrower  or  any  Restricted  Subsidiary);  provided,        however, that such Liens are not created, Incurred or assumed in anticipation of or in              (w)        connection  with  such  other  Person  becoming  a  Restricted  Subsidiary  (or  such        acquisition of such property, other assets or stock); provided, further, that such Liens                   acceptances  issued  or  created  in  the  ordinary  course  of  business  of  such  Person  to        are  limited  to  all  or  part  of  the  same  property,  other  assets  or  stock  (plus                 facilitate the purchase, shipment or storage of such inventory or other goods and Liens        improvements,  accession,  proceeds  or  dividends  or  distributions  in  connection  with                securing or arising by reason of any netting or set-off arrangement entered into in the        the  original  property,  other  assets  or  stock)  that  secured  (or,  under  the  written              ordinary course of banking or other trading activities;        arrangements under which such  Liens  arose, could secure) the  obligations to which                                                                                                            (x)    Liens  arising  out  of  conditional  sale,  title  retention,  hire  purchase,  consignment        such Liens relate;                                                                                                                   (including Liens in favour of a consignor on a segregated deposit account established  (o)   Liens  on  assets  or  property  of  the  Borrower  or  any  Restricted  Subsidiary  securing              for  the  benefit  of  such  consignor  and  into  which  only  proceeds  of  works  of  art        Indebtedness  or  other  obligations  of  the  Borrower  or  such  Restricted  Subsidiary                  consigned  by  such  consignor  to  the  Borrower  or  any  of  its  Subsidiaries  for  sale        owing  to  the  Borrower  or  another  Restricted  Subsidiary,  or  Liens  in  favor  of  the        Borrower or any Restricted Subsidiary;                                                                     deposited) or similar arrangements for the sale of goods entered into in the ordinary                                                                                                                   course of business, and pledges of goods, the related documents of title and/or other  (p)   Liens securing Refinancing Indebtedness Incurred to refinance Indebtedness that was                        related documents arising or created in the ordinary course of business or operations        previously  so  secured,  and  permitted  to  be  secured  under this  Agreement; provided                 as Liens only for Indebtedness to a bank or financial institution directly relating to the        that  any  such  Lien  is  limited  to  all  or  part  of  the  same  property  or  assets  (plus          goods or documents on or over which the pledge exists;        improvements, accessions, proceeds or dividends or distributions in respect thereof)                                                                               68                                                                                                         69                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            (y)   Permitted Collateral Liens;                                                                         (ll)   Liens  or  rights  of  set-off  against  credit  balances  of  the  Borrower  or  any  of  the                                                                                                                   Restricted Subsidiaries with credit card issuers or credit card processors or amounts  (z)   Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that                   owing  by  such  credit  card  issuers  or  credit  card  processors  to  the  Borrower  or  any        secure Indebtedness of such Unrestricted Subsidiary;                                                       Restricted Subsidiaries in the ordinary course of business to secure the obligations of                                                                                                                   the Borrower or any Restricted Subsidiary to the credit card Borrowers or credit card  (aa)  any security granted over Cash Equivalents in connection with the disposal thereof to                      processors as a result of fees and charges;         a  third  party  and  Liens  on  cash,  Cash  Equivalents  or  other  property  arising  in        connection with the defeasance, discharge or redemption of Indebtedness;                            (mm)   customary Liens of an indenture trustee on money or property held or collected by it                                                                                                                   to  secure  fees,  expenses  and  indemnities  owing  to  it  by  any  obligor  under  an  (bb)  (a) Liens created for the benefit of or to secure, directly or indirectly, the Obligations,                indenture; and        (b) Liens pursuant to any Intercreditor Agreement and (c) Liens in respect of property        and assets securing Indebtedness if the recovery in respect of such Liens is subject to             (nn)   Liens arising in connection with any Permitted Reorganization.        loss-sharing  or  similar  provisions  as  among  the  Lenders  and  the  creditors  of  such        Indebtedness pursuant to any Intercreditor Agreement or an Additional Intercreditor                  Permitted  Reorganization                          d  other  activities  related  to  tax        Agreement;                                                                                          planning and tax reorganization, so long as, after giving effect thereto, the enforceability of                                                                                                            the  Loan  Guarantees and the security of the  Secured  Parties  in the  Collateral, in  each case  (cc)  Liens created on any asset of the Borrower or a Restricted Subsidiary established to                taken as a whole, are not materially impaired.        hold assets of any stock option plan or any other management or employee benefit or        incentive plan or unit trust of the Borrower or a Restricted Subsidiary securing any                 Permitted Sale and Leaseback Transactions       loan to finance the acquisition of such assets;                                                     the lease transactions  in respect  of the York  Property  and the  London Properties; provided                                                                                                            that:  (dd)  Liens; provided that the maximum amount of Indebtedness secured in the aggregate at        any one time pursuant to this clause (dd) does not exceed the greater of $45 million                (a)    each of the lease transactions relating to the London Properties and the York Property        and 20% of Pro Forma EBITDA for the most recently ended four full fiscal quarters                          is,  in  the  reasonable  determination  of  the  Borrower,  on  terms  not  materially  less        for  which  internal  financial  statements  of  the  Borrower  are  available  immediately                favorable to the Borrower or a Restricted Subsidiary than those that could be obtained        preceding the date of determination;                                                                                                       -length  dealings  with  a  Person  who  is  not  an                                                                                                                   Affiliate;  (ee)  Liens consisting of any right of set-off granted to any financial institution acting as a        lockbox bank in connection with a Qualified Receivables Financing;                                  (b)    the  terms  of  such  lease  arrangement(s)  do  not  restrict  rights  of  the  lessee  and  the                                                                                                                   scope of use of the real estate subject to such lease transactions in a material way from  (ff)  Liens  for  the  purpose  of  perfecting  the  ownership  interests  of  a  purchaser  of                  the manner such real estate is used by the Borrower and the Restricted Subsidiaries        Receivables and related assets pursuant to any Qualified Receivables Financing;                            immediately prior to the Closing Date; and   (gg)  Cash deposits or other Liens for the purpose of securing Limited Recourse;                          (c)    the  initial  term  of  the  lease  arrangement(s)  related  to  the  York  Property  and  the                                                                                                                   London Properties shall, in each case, not be less than the Initial Term Loan Maturity  (hh)  Liens  arising  in  connection  with  other  sales  of  Receivables  permitted  hereunder                  Date.        without recourse to the Borrower or any of its Restricted Subsidiaries;                                                                                                             Person                                                                        - (ii)  [Reserved];                                                                                         stock company, trust, unincorporated organization, limited liability company, government or                                                                                                            any agency or political subdivision thereof or any other entity.  (jj)  Liens  encumbering  reasonable  customary  initial  deposits  and  margin  deposits  and        similar  Liens  attaching  to  commodity  trading  accounts  or  other  brokerage  accounts          Preferred Stock       incurred in the ordinary course of business and not for speculative purposes;                       class or classes (however designated) which is preferred as to the payment of dividends or as                                                                                                            to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of  (kk)  Liens (a) on any cash earnest money deposits or cash advances made by the Borrower                  such Person, over shares of Capital Stock of any other class of such Person.        or  any  of  the  Restricted  Subsidiaries  in  connection  with  any  letter  of  intent  or        purchase agreement permitted under this Agreement, or (b) on other cash advances in                  Pro  Forma  EBITDA       favor of the seller of any property to be acquired in an Investment or other acquisition            and  the  Restricted  Subsidiaries,  provided  that  for  the  purposes  of  calculating Pro  Forma        permitted hereunder to be applied against the purchase price for such Investment or                 EBITDA for such period, if, as of such date of determination:        other acquisition;                                                                                70                                                                                                         71                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            (a)   since  the  beginning  of  such  period  the  Borrower  or  any  Restricted  Subsidiary  has              if such transaction had occurred on the first day of the relevant period and (c) if any        disposed  of  any  company,  any  business,  or  any  group  of  assets  constituting  an                 Indebtedness bears a floating rate of interest and is being given pro forma effect, the        operating unit of a business or otherwise ceases to be a Restricted Subsidiary (and is                    interest on such Indebtedness shall be calculated as if the rate in effect on the date of                                                                                                                  determination had been the applicable rate for the entire period (taking into account        or if the transaction giving rise to the need to calculate Pro Forma EBITDA is such a                     any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation        Sale, Pro Forma EBITDA for such period will be reduced by an amount equal to the                          has a remaining term in excess of 12 months).        Consolidated EBITDA (if positive) attributable to the assets which are the subject of        such  Sale  for  such  period  or  increased  by  an  amount  equal  to  the  Consolidated            Public  Debt                                                       es  or  other        EBITDA (if  negative) attributable thereto for such period; provided that if any such               similar debt securities issued in (1) a public offering registered under the Securities Act or (2)                                                                                                            a private placement to institutional investors that is underwritten for resale in accordance with        Net Income shall be reduced by an amount equal to the Consolidated Net Income (if                   Rule 144A or Regulation S under the Securities  Act, whether or not it includes registration        positive)  attributable  to  such  operations  for  such  period  or  increased  by  an  amount     rights  entitling  the  holders  of  such  debt  securities  to  registration  thereof  with  the  SEC  for        equal  to  the  Consolidated  Net  Income  (if  negative)  attributable  thereto  for  such         public resale.         period;                                                                                                             Public  Offering (b)   since  the  beginning  of  such  period,  a  Parent,  the  Borrower  or  any  Restricted            common stock or other  common equity interests that are listed on an exchange or publicly        Subsidiary  (by  merger  or  otherwise)  has  made  an  Investment  in  any  Person  that           offered (which shall include an offering pursuant to Rule 144A and/or Regulation S under the        thereby becomes a Restricted Subsidiary, or otherwise has acquired any company, any                 Securities Act to professional market investors or similar persons).        business,  or  any  group  of  assets  constituting  an  operating  unit  of  a  business  or  a        Person  otherwise  becomes  a  Restricted  Subsidiary  (and  remains  a  Restricted                  Public Offering Expenses       Subsidiary at the end of such period) (any such Investment, acquisition or designation,             Public Offering or any offering of Public Debt (whether or not successful):                                                                                                            (a)    where the net proceeds of such offering are intended to be received by or contributed        causing a calculation to be made hereunder, Pro Forma EBITDA for such period will                                                                                                                   or loaned to the Borrower or a Restricted Subsidiary;        be calculated after giving pro forma effect thereto as if such Purchase occurred on the        first day of such period; and                                                                       (b)    in  a  pro-rated  amount  of  such  expenses  in  proportion  to  the  amount  of  such  net                                                                                                                   proceeds intended to be so received, contributed or loaned; or  (c)   since the beginning of such period, any Person (that became a Restricted Subsidiary        or  was  merged  or  otherwise  combined  with  or  into  the  Borrower  or  any  Restricted        (c)    otherwise  on  an  interim  basis  prior  to  completion  of  such  offering  so  long  as  any        Subsidiary  since  the  beginning  of  such  period)  will  have  made  any  Sale  or  any                 Parent shall cause the amount of such expenses to be repaid to the Borrower or the        Purchase that would have required an adjustment pursuant to clause (a) or (b) above if                     relevant  Restricted  Subsidiary  out  of  the  proceeds  of  such  offering  promptly  if        made by the Borrower or a Restricted Subsidiary since the beginning of such period,                        completed,  in  each  case,  to  the  extent  such  expenses  are  not  paid  by  another        Pro Forma EBITDA for such period will be calculated after giving pro forma effect                          Subsidiary of such Parent.         thereto as if such Sale or Purchase occurred on the first day of such period.                                                                                                             Purchase                                                      For  the  purposes  of  this  definition  and  the  definitions  of  Consolidated  EBITDA,        Consolidated  Income  Taxes,  Consolidated  Interest  Expense,  Consolidated  Net                    Purchase  Money  Note       Income,  Consolidated  Net  Leverage  Ratio  and  Consolidated  Net  Senior  Secured                deferred purchase price of Receivables (and related assets) and/or a line of credit, which may        Leverage Ratio or any other purpose hereunder (a) whenever pro forma effect is to be                be  irrevocable,  from  the  Borrower  or  any  Restricted  Subsidiary  in  connection  with  a        given  to  any  transaction  (including,  without  limitation,  transactions  listed  in            Qualified Receivables Financing with a Receivables Entity, which deferred purchase price or        clauses (a)-(c)  hereof)  or  calculation  hereunder  or  such  other  definitions,  the pro        line is repayable from cash available to a Receivables Entity, other than amounts required to        forma calculations  will be as determined in  good faith by  a  responsible financial or            be  established  as  reserves  pursuant  to  agreements,  amounts  paid  to  investors  in  respect  of        accounting officer of the Borrower or an Officer of the Borrower (including in respect              interest,  principal  and  other  amounts  owing  to  such  investors  and  amounts  owing  to  such        of  anticipated  expense  and  cost  reductions  and  synergies  (other  than  revenue              investors and amounts paid in connection with the purchase of newly generated Receivables.        synergies))  (calculated  on  a pro  forma  basis  as  though  such  expense  and  cost        reductions and synergies had been realized on the first day of the period for which Pro              Purchase Money Obligations       Forma  EBITDA  is  being  determined  and  as  though  such  cost  savings,  operating              acquisition,  leasing,  construction  or  improvement  of  property  (real  or  personal)  or  assets        expense  reductions  and  synergies  were  realized  during  the  entirety  of  such  period),      (including  Capital  Stock),  and  whether  acquired  through  the  direct  acquisition  of  such        (b) in  determining  the  amount  of  Indebtedness  outstanding  on  any  date  of                  property or assets or the acquisition of the Capital Stock of any Person owning such property        determination, pro  forma  effect  shall  be  given  to  any  Incurrence,  repayment,               or assets, or otherwise.        repurchase, defeasance or other acquisition, retirement or discharge of Indebtedness as                                                                                72                                                                                                         73                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                             Qualified  Receivables  Financing                                                                               except,  in  each  case,  Limited  Recourse  and  sub-clauses  (ee)  through  (hh)  of  the  Entity  that  meets  the  following  conditions:  (1)  an  Officer  or  the  Board  of  Directors  of the        definition of Permitted Liens;   Borrower  shall  have  determined  in  good  faith  that  such  Qualified  Receivables  Financing  (including  financing  terms,  covenants,  termination  events  and  other  provisions)  is  in  the      (b)    with which neither the Borrower nor any other Restricted Subsidiary has any material  aggregate economically fair and reasonable to the Borrower and the Receivables Entity, (2)                       contract,  agreement,  arrangement  or  understanding  (except  in  connection  with  a  all sales of accounts receivable and related assets to the Receivables Entity are made at fair                   Purchase  Money  Note  or  a  Qualified  Receivables  Financing)  other  than  on  terms  market  value  (as  determined  in  good  faith  by  the  Borrower),  and  (3)  the  financing  terms,           which the Borrower  reasonably believes  to be  no  less  favorable to  the  Borrower or  covenants,  termination  events  and  other  provisions  thereof  shall  be  on  market  terms  (as              such Restricted Subsidiary than those that might be obtained at the time from Persons  determined  in  good  faith  by  the  Borrower)  and  may  include  Standard  Securitization                     that are not Affiliates of the Borrower other than fees payable in the ordinary course  Undertakings.                                                                                                    of business in connection with servicing Receivables; and    The grant of a security interest in any accounts receivable of the Borrower or any Restricted             (c)    to which neither the Borrower nor any other Restricted Subsidiary has any obligation  Subsidiary (other than a Receivables Entity) to secure Indebtedness under a Credit Facility or                   to  maintain  or  preserve  Indebtedness  in  respect  of  the  Senior  Secured  Notes  shall  not  be  deemed  a  Qualified                 achieve certain levels of operating results (other than those related to or incidental to  Receivables Financing.                                                                                           the relevant Qualified Receivables Financing), except for Limited Recourse.     Real Estate Portfolio Transfer                                                                           Any such designation by  the  Board of Directors of the Borrower shall be evidenced to the  in  the  transfers  of  the  York  Property  and  of  the  London  Properties  from  the  Target  or  a   Administrative Agent by filing with the Administrative Agent a copy of the resolution of the  Restricted Subsidiary to other entities.                                                                                                            Certificate certifying that such designation complied with the foregoing conditions.   Receivable                                  sing  from  a  sale  or  lease  of  goods  or  services by a Person pursuant to an arrangement with another Person pursuant to which such                 Receivables Fees other Person is obligated to pay for goods or services under terms that permit the purchase of            with respect to any participation interest issued or sold in connection with, and other fees paid  such goods and services on credit, as determined on the basis of GAAP, and shall include, in              to a Person that is not a Restricted Subsidiary in connection with, any Receivables Financing.                                                                                                              Receivables  Financing State of New                                                                                              transaction related to the SFS Business Transfer) that may be entered into by the Borrower or                                                                                                            any  of its Subsidiaries pursuant to which the Borrower or  any of its Subsidiaries  may sell,   Receivables  Assets                                                                                      convey  or  otherwise  transfer  to  (a)  a  Receivables  Entity  (in  the  case  of  a  transfer  by  the  related  assets  and  property  (including  proceeds  thereof)  from  time  to  time  originated,         Borrower or any of its Subsidiaries), or (b) any other Person (in the case of a transfer by a  acquired  or  otherwise  owned  by  the  Borrower  or  any  Subsidiary,  including,  without              Receivables  Entity),  or  may  grant  a  security  interest  in,  any  accounts  receivable  (whether  limitation, assets that are or will be the subject of a Qualified Receivables Financing.                  now  existing  or  arising  in  the  future)  of  the  Borrower  or  any  of  its  Subsidiaries,  and  any                                                                                                            assets related thereto, including all collateral securing such accounts receivable, all contracts   Receivables Entity                                                                                       and  all  guarantees  or  other  obligations  in  respect  of  such  accounts  receivable,  proceeds  of  in which the Borrower or any Subsidiary of the Borrower makes an Investment and to which                  such accounts receivable and other assets which are customarily transferred or in respect of  the  Borrower  or  any  Subsidiary  of  the  Borrower  transfers  accounts  receivable  and  related      which  security  interest  are  customarily  granted  in  connection  with  asset  securitization  assets) which engages in no activities other than in connection with the financing of accounts            transactions involving accounts receivable and any Hedging Obligations entered into by the  receivable  of  the  Borrower  and  its  Subsidiaries,  all  proceeds  thereof  and  all  rights          Borrower or any such Subsidiary in connection with such accounts receivable.   (contractual  or  other),  collateral  and  other  assets  relating  thereto,  and  any  business  or  activities  incidental  or  related  to  such  business,  and  which  is  designated  by  the  Board  of   Receivables  Repurchase  Obligation Directors of the Borrower (as provided below) as a Receivables Subsidiary and:                            Qualified Receivables Financing to repurchase receivables arising as a result of a breach of a                                                                                                            representation,  warranty  or  covenant  or  otherwise,  including  as  a  result  of  a  receivable  or  (a)   no portion of the Indebtedness or any other obligations (contingent or otherwise) of                portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of        which  (i)  is  guaranteed  by  the  Borrower  or  any  Restricted  Subsidiary  (excluding          any kind as a result of any action taken by, any failure to take action by or any other event        guarantees of obligations (other than the principal of, and interest on,  Indebtedness)             relating to the seller.        pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates the        Borrower  or  any  Restricted  Subsidiary  in  any  way  other  than  pursuant  to  Standard         Refinance                    efund,  replace,  renew,  repay,  modify,  restate,  defer,        Securitization Undertakings or (iii) subjects any property or asset of the Borrower or              substitute,  supplement,  reissue,  resell,  extend  or  increase  (including  pursuant  to  any        any  Restricted  Subsidiary,  directly  or  indirectly,  contingently  or  otherwise,  to  the        satisfaction  thereof,  other  than  pursuant  to  Standard  Securitization  Undertakings                                         se in this Agreement shall have a correlative meaning.                                                                                74                                                                                                         75                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                             Refinancing                                                                                                     worth, gross receipts, excise, occupancy, intangibles or similar Taxes (other than (x)  cancellation  of  any  Existing  Target  Notes  in  connection  therewith  or  thereafter)  and  the             Taxes measured by income and (y) withholding taxes), required to be paid (provided  Existing Facilities Refinancing.                                                                                 such Taxes are in fact paid) by any Parent by virtue of its:    Refinancing  Indebtedness                                                                                       (i)   being  incorporated  or  otherwise  being  established  or  having  Capital  Stock  Subsidiary  to  refund,  refinance,  replace,  exchange,  renew,  repay  or  extend  (including                        outstanding (but not by virtue of owning stock or other equity interests of any  pursuant to any defeasance or discharge mechanism) any Indebtedness existing on the date of                            corporation  or  other  entity  other  than,  directly  or  indirectly,  the  Parent  this Agreement or Incurred in compliance with this Agreement including Indebtedness that                               Borrower or any Subsidiary of the Parent Borrower);   refinances Refinancing Indebtedness; provided, however, that:                                                                                                                    (ii)  issuing or holding Subordinated Shareholder Funding;  (a)   if  the  Indebtedness  being  refinanced  constitutes  Subordinated  Indebtedness,  the        Refinancing  Indebtedness  has  a  final  stated  maturity  at  the  time  such  Refinancing               (iii) being a holding company parent, directly or indirectly, of the Borrower or any        Indebtedness is Incurred that is the same as or later than the final stated maturity of                          Subsidiary of the Borrower;        the Indebtedness being refinanced or, if shorter, the Initial Term Loan Maturity Date;                                                                                                                   (iv)  receiving dividends from or other distributions in respect of the Capital Stock  (b)   such  Refinancing  Indebtedness  is  Incurred  in  an  aggregate  principal  amount  (or  if                     of, directly or indirectly, the Borrower or any Subsidiary of the Borrower; or        issued with original issue discount, an aggregate issue price) that is equal to or less        than  the  sum  of  the  aggregate  principal  amount  (or  if  issued  with  original  issue              (v)   having  made  any  payment  in  respect  to  any  of  the  items  for  which  the        discount,  the  aggregate  accreted  value)  then  outstanding  of  the  Indebtedness  being                     Borrower   is  permitted  to  make  payments  to  any  Parent  pursuant  to  Section        refinanced  (and with respect to Reserved Indebtedness, including an amount equal to                             4.05; or        any  unutilized  commitments  for  such  Reserved  Indebtedness  being  refinanced,        extended,  replaced,  refunded,  renewed  or  defeased  to  the  extent  permanently                (b)    if  and  for  so  long  as  the  Borrower  is  a  member  of  or  included  in  a  group  filing  a        terminated  in  connection  with  such  Refinancing  Indebtedness)  (plus,  without                        consolidated or combined tax return with any Parent or, for so long as the Borrower is        duplication,  any  additional  Indebtedness  Incurred  to  pay  interest  or  premiums                     an entity disregarded as separate from its Parent for U.S. federal income tax purposes,        required  by the instruments  governing such existing  Indebtedness,  tender  premiums                     any Taxes measured by income for which such Parent is liable up to an amount not to        and costs, expenses and fees Incurred in connection therewith);                                            exceed with respect to such Taxes the amount of any such Taxes that the Borrower                                                                                                                   and  Subsidiaries  of  the  Borrower  would  have  been  required  to  pay  on  a  separate  (c)   if  the  Indebtedness  being  refinanced  is  expressly  subordinated  to  the  Loans  or  any             company basis or on a consolidated basis if the Borrower and the Subsidiaries of the        Loan Guarantee, such Refinancing Indebtedness is subordinated to the Loans or such                         Borrower had paid tax on a consolidated, combined, group, affiliated or unitary basis        Loan Guarantee, as applicable, on terms at least as favorable to the Lenders as those                      on behalf of an affiliated group consisting only of the Borrower and the Subsidiaries        contained in the documentation governing the Indebtedness being refinanced; and                            of the Borrower.   (d)   if  the  Borrower  or  any  Subsidiary  Guarantor  was  the  obligor  on  the  Indebtedness          Restricted Investment         Investment other than a Permitted Investment.        being  refinanced,  such  Indebtedness  is  incurred  either  by  the  Borrower  or  by  a        Subsidiary Guarantor,                                                                                Restricted Subsidiary                       Administrative  Borrower  other  than  an                                                                                                            Unrestricted  Subsidiary,  and  shall  include,  for  the  avoidance  of  doubt,  the  Subsidiary        provided, however, that Refinancing Indebtedness shall not include (i) Indebtedness of              Revolver Borrower.        the  Borrower  that  refinances  Indebtedness  of  an  Unrestricted  Subsidiary  or        (ii) Indebtedness of the Borrower owing to and held by the Borrower or any Restricted                 S&P               Global Ratings or any of its successors or assigns that is a Nationally        Subsidiary  or  Indebtedness  of  a  Restricted  Subsidiary  owing  to  and  held  by  the          Recognized Statistical Rating Organization.        Borrower or any other Restricted Subsidiary.                                                                                                             Sale                                                Refinancing Indebtedness in respect of any Credit Facility or any other Indebtedness may be                                                                                                             SEC                                                  Incurred from time to time after the termination, discharge, or repayment of any such Credit  Facility or other Indebtedness.                                                                            Securities  Act      the  U.S.  Securities  Act  of  1933,  as  amended,  and  the  rules  and   Related Taxes                                                            ithout                          regulations of the SEC promulgated thereunder, as amended.  duplication of any amounts paid pursuant to any Tax Sharing Agreement):                                                                                                             Securitization  Assets (a)   any  Taxes,  including  sales,  use,  transfer,  rental,  ad  valorem,  value  added,  stamp,       and other rights to payment and other assets related thereto subject to a Qualified Receivables        property, consumption, franchise, license, capital, registration, business, customs, net            Financing and the proceeds thereof and (b) contract rights, lockbox accounts and records with                                                                                76                                                                                                         77                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            respect to such accounts receivable and any other assets customarily transferred together with            servicing the existing portfolio of loans and any future portfolio of loans made by the SFS  accounts receivable in a securitization financing.                                                        Business),  which  transactions  will  be  completed  in  all  material  respects  substantially                                                                                                            concurrently with the closing of the Acquisition.   Senior  Secured  Indebtedness determination, any Specified  Indebtedness; provided that such  Indebtedness is in each case               Similar  Business secured by a Lien on the assets of the Borrower or its Restricted Subsidiaries on a basis pari            engaged  in  by  the  Borrower  or  any  of  its  Subsidiaries  on  the  Closing  Date  and  (b)  any  passu with or senior to the security in favor of the Loans.                                               businesses,  services  and  activities  that  are  targeted  towards  (x)  the  luxury  or  premium                                                                                                            segments of the market or (y) financially successful clients and (z) any business services and   Senior  Secured  Notes  Indenture                     as  of  the  Effective  Date,  as                  activities  (including  marketing)  engaged  in  by  the  Parent,  the  Borrower  or  any  of  its  amended, between the Borrower, as issuer, and the trustee party thereto, governing the Senior             Subsidiaries that are (i) related, complementary, incidental, ancillary or similar to any of the  Secured Notes.                                                                                            foregoing or (ii) are reasonable extensions or developments of any thereof.    Senior  Secured  Notes  Security  Documents                                                               Specified Indebtedness agreements,  collateral  assignments,  and  any  other  instrument  and  document  executed  and          any  Indebtedness  for  borrowed  money  that  is  Incurred  under  Section  4.04(a),  delivered  pursuant  to  the  Senior  Secured  Notes  Indenture  or  otherwise  or  any  of  the          Section 4.04(b)(1),  Section  4.04(b)(4)(a),  Section  4.04(b)(4)(b),  Section  4.04(b)(4)(c),  foregoing, as the same may be amended, supplemented or otherwise modified from time to                    Section  4.04(b)(5),  Section  4.04(b)(7),  Section  4.04(b)(14)  or  Section  4.04(b)(16)  and  any  time, creating the security interests in the Collateral as contemplated by the Senior Secured             Refinancing Indebtedness in respect of the foregoing.  Notes Indenture.                                                                                                             Standard  Securitization  Undertakings  Servicer  Agreement                                                                                      indemnities and guarantees of performance entered into by the Borrower or any Subsidiary of  Borrower or any Restricted Subsidiary provides customary servicing services in connection                 the  Borrower  which  the  Borrower  has  determined  in  good  faith  to  be  customary  in  a  with any securitization of loan portfolios by the SFS Business.                                           Receivables  Financing,  securitization  financing  or  for  such  type  of  factoring  or  similar                                                                                                            arrangement,  including,  without  limitation,  Limited  Recourse  and  those  relating  to  the   Significant  Subsidiary     ny  Restricted  Subsidiary that  meets  any  of the  following               servicing  of  the  assets  of  a  Receivables  Entity,  it  being  understood  that  any  Receivables  conditions:                                                                                               Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.   (a)                                                                                                        Stated Maturity       Restricted Subsidiary exceed 10% of total assets of the Borrower and the Restricted                 of  Indebtedness,  the  date  on  which  the  payment  of interest  or  principal  is  scheduled  to  be        Subsidiaries  on  a  consolidated  basis  as of the end  of the most  recently  completed           paid, and will not include any contingent obligations to repay, redeem or repurchase any such        fiscal year;                                                                                        interest or principal prior to the date scheduled for the payment thereof.   (b)                                                                                                        Subordinated Indebtedness            case of the Borrower, any Indebtedness (whether        (after intercompany  eliminations) of the Restricted Subsidiary  exceeds 10%  of total              outstanding on the Effective Date or thereafter Incurred) which is expressly subordinated or        assets of the Borrower and the Restricted Subsidiaries on a consolidated basis as of                junior in right of payment to the Loans or pursuant to a written agreement and, in the case of        the end of the most recently completed fiscal year; or                                              a Subsidiary Guarantor, any Indebtedness (whether outstanding on the Initial Funding Date or                                                                                                            thereafter Incurred) which is expressly subordinated or junior in right of payment pursuant to  (c)                                                                                                       a written agreement to the Loan Guarantee of such Subsidiary Guarantor.         continuing operations before income taxes, extraordinary items and cumulative effect        of a change in accounting principle of the Restricted Subsidiary exceeds 10% of such                 Subordinated  Shareholder  Funding       income of the Borrower and the Restricted Subsidiaries on a consolidated basis for the              Borrower by any Parent, any Affiliate of any Parent or any Permitted Holder or any Affiliate        most recently completed fiscal year.                                                                thereof,  in  exchange  for  or  pursuant  to  any  security,  instrument  or  agreement  other  than                                                                                                            Capital Stock, in each case issued to and held by any of the foregoing Persons, together with  provided  that,  for  the  avoidance  of  doubt,  the  Subsidiary  Revolver  Borrower  shall  also  be    any such security, instrument or agreement and any other security or instrument other than  deemed a Significant Subsidiary.                                                                          Capital  Stock  issued  in  payment  of  any  obligation  under  any  Subordinated  Shareholder                                                                                                            Funding; provided, however, that such Subordinated Shareholder Funding:   SFS Business                                                           -related  financing activities by making loans that are secured by works of art.                                    (a)    does  not  mature  or  require  any  amortization,  redemption  or  other  repayment  of                                                                                                                   principal  or  any  sinking  fund  payment  prior  to  the  first  anniversary  of  the  Stated   SFS Business Transfer                                                                                                                  Maturity  of  the  Initial  Term  Loans  (other  than  through  conversion  or  exchange  of  Business  from  the  Borrower  to  other  entities  (which  will  include  the  sale  of  the  existing                                                                                                                   such  funding  into  Capital  Stock  (other  than  Disqualified  Stock)  of the  Borrower  or  portfolio of loans of the SFS Business and will include the Target being retained to continue                                                                                                                   any  funding meeting the requirements of this definition) or the making of any such                                                                               78                                                                                                         79                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                                  payment prior to the first anniversary of the Stated Maturity of the Initial Term Loans                    (ii)  such Person or any Subsidiary of such Person is a controlling general partner        is restricted by any Intercreditor Agreement, an Additional Intercreditor Agreement or                           or otherwise controls such entity.        another intercreditor agreement;                                                                                                             Subsidiary Guarantee                                                       (b)   does  not  require,  prior  to  the  first  anniversary  of  the  Stated  Maturity  of  the  Initial        Term Loans, payment of cash interest, cash withholding amounts or other cash gross-                  Subsidiary  Guarantor       ups, or any similar cash amounts or the making of any such payment prior to the first               the Loans and shall include, for the avoidance of doubt, the Subsidiary Revolver Borrower.        anniversary  of  the  Stated  Maturity  of  the  Initial  Term  Loans  is  restricted  by  any        Intercreditor  Agreement,  an  Additional  Intercreditor  Agreement  or  another                     Tax  Sharing  Agreement       intercreditor agreement;                                                                                                          -length terms entered into with any Parent or Unrestricted                                                                                                            Subsidiary, as the same may be amended, supplemented, waived or otherwise modified from  (c)   contains no change of control or similar provisions and does not accelerate and has no              time to time in accordance with the terms thereof and of this Agreement.        right  to  declare  a  default  or  event  of  default  or  take  any  enforcement  action  or        otherwise require any cash payment, in each case, prior to the date that is six months               Temporary Cash Investments                                 following the Stated Maturity of the Initial Term Loans or the payment of any amount        as a result of any such action or provision or the exercise of any rights or enforcement            (a)    any investment in        action, in each case, prior to the date that is six months following the Stated Maturity                                                                                                                   (i)   direct  obligations  of,  or  obligations  Guaranteed  by,  (i)  the  United  States  of        of the Initial Term Loans, is restricted by any Intercreditor Agreement, an Additional                                                                                                                         America,  (ii)  Canada,  (iii)  the  United  Kingdom,  (iv)  any  European  Union        Intercreditor Agreement or another Intercreditor Agreement;                                                                                                                         member state, (v) Switzerland, (vi) any country in whose currency funds are  (d)   does not provide for or require any security interest or encumbrance over any asset of                           being held specifically pending application in the making of an investment or        the Borrower or any of the Restricted Subsidiaries; and                                                          capital expenditure by the Borrower or a Restricted Subsidiary in that country                                                                                                                         with such funds or (vii) any agency or instrumentality of any such country or  (e)   pursuant  to  its  terms  or to  any  Intercreditor  Agreement,  an  Additional  Intercreditor                   member state, or        Agreement or another intercreditor agreement, is fully subordinated and junior in right        of  payment  to  the  Loans  pursuant  to  subordination,  payment  blockage  and                          (ii)  direct obligations of any country recognized by the United States of America        enforcement limitation terms which are customary in all material respects for similar                                                      -       funding or are no less favourable in any material respect to the Secured Parties than                            case,  the  equivalent  of  such  rating  by  such  organization  or,  if  no  rating  of        those contained in the Closing Date Intercreditor Agreement as in effect on the Initial        Funding Date.                                                                                                    Nationally Recognized Statistical Rating Organization);    Subsidiary                                                                                               (b)    overnight  bank  deposits,  and  investments  in  time  deposit  accounts,  certificates  of   (a)   any corporation, association, or other business entity (other than a partnership, joint                    banks,  similar  instruments)  maturing  not  more  than  one  year  after  the  date  of        venture, limited liability company or similar entity) of which more than 50% of the                        acquisition thereof issued by:        total ordinary voting power of shares of Capital Stock entitled (without regard to the        occurrence  of  any  contingency)  to  vote  in  the  election  of  directors,  managers  or               (i)   any  institution  authorized  to  operate  as  a  bank  in  any  of  the  countries  or        trustees  thereof  is  at  the  time  of  determination  owned  or  controlled,  directly  or                    member states referred to in sub-clause (a)(i) above, or        indirectly, by such Person or one or more of the other Subsidiaries of that Person or a                                                                                                                   (ii)  any bank or trust company organized under the laws of any such country or        combination thereof; or                                                                                                                         member state or any political subdivision thereof,  (b)   any partnership, joint venture, limited liability company or similar entity of which:                                                                                                                         in each case, having capital and surplus aggregating in excess of $250 million        (i)   more  than  50%  of  the  capital  accounts,  distribution  rights,  total  equity  and                    (or the foreign currency equivalent thereof) and whose long-term debt is rated              voting  interests  or  general  or  limited partnership  interests,  as  applicable,  are                                      -                    by Fitch (or, in either case, the              owned or controlled, directly or indirectly, by such Person or one or more of                              equivalent  of  such  rating  by  such  organization  or,  if  no  rating  of  S&P,              the other Subsidiaries of that Person or a combination thereof whether in the              form  of  membership,  general,  special  or  limited  partnership  interests  or                          Recognized  Statistical  Rating  Organization)  at  the  time  such  Investment  is              otherwise; and                                                                                             made;                                                                                 80                                                                                                         81                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                            (c)   repurchase obligations with a term of not more than 30 days for underlying securities                Transactions         the  Acquisition,  the  issuance  of  the  Senior  Secured  Notes,  the        of the types described in clause (a) or (b) above entered into with a Person meeting                borrowing of Loans under this Agreement on or prior to the Closing Date and the issuance of        the qualifications described in clause (b) above;                                                   any Letters of Credit hereunder on the Closing Date, the Existing Facilities Refinancing, the                                                                                                            Change  of  Control  Tender,  the  Real  Estate  Portfolio  Transfer,  the  Permitted  Sale  and  (d)   Investments in commercial paper, maturing not more than 270 days after the date of                  Leaseback  Transactions,  the  SFS  Business  Transfer  and  in  each  case,  the  application  of        acquisition, issued by a Person (other than the Borrower or any of its Subsidiaries),               proceeds  thereof  and  the  consummation  of  any  other  transactions  in  connection  with  the                                                                           -                                foregoing (including in connection with the Acquisition Agreement and the payment of the                                     A-                                    -                                fees, costs and expenses incurred in connection with any of the foregoing) and as otherwise        higher)  according  to  Fitch  (or,  in  either  case,  the  equivalent  of  such  rating  by  such disclosed in Offering Memorandum.         such rating by any Nationally Recognized Statistical Rating Organization);                           Uniform Commercial Code                                                (e)   Investments in securities maturing not more than one year after the date of acquisition              Unrestricted Subsidiary             issued  or  fully  Guaranteed  by  any  state,  commonwealth  or  territory  of  the  United        States of America,  Canada, the  United Kingdom,  Switzerland, any European  Union                  (a)    any  Subsidiary  of the Borrower  that  at the time  of determination is an  Unrestricted        member  state  or  by  any  political  subdivision  or  taxing  authority  of  any  such  state,           Subsidiary (as designated  by the Board of Directors  of the Borrower in  the manner                                                                        -                                          provided below);                                  -                          the  equivalent  of  such                                                                                                            (b)    any  Initial  Funding  Date  Unrestricted  Subsidiaries  (until  any  such  Subsidiary  is        equivalent  of  such  rating  by  any  Nationally  Recognized  Statistical  Rating                         designated as a Restricted Subsidiary in the manner provided below or is no longer a        Organization);                                                                                             Subsidiary of the Borrower); and    (f)   bills  of  exchange  issued  in  the  United  States  of  America,  Canada,  Switzerland,  the      (c)    any Subsidiary of an Unrestricted Subsidiary.        United Kingdom, or a member state of the European Union eligible for rediscount at        the relevant central bank and accepted by a bank (or any dematerialized equivalent);                      The  Board  of  Directors  of  the  Borrower  may  designate  any  Subsidiary  of  the                                                                                                                  Borrower  (including  any  newly  acquired  or  newly  formed  Subsidiary  or  a  Person  (g)   any money market deposit accounts issued or offered by a commercial bank organized                        becoming a Subsidiary through merger, consolidation or other business combination        under the laws of a country that is a member of the Organization for Economic Co-                         transaction, or Investment therein; but other than the Subsidiary Revolver Borrower)        operation  and  Development,  in  each  case,  having  capital  and  surplus  in  excess  of              to be an Unrestricted Subsidiary only if:         $250 million (or the foreign currency equivalent thereof) or whose long term debt is                                                                                                            (a)    such  Subsidiary  or  any  of  its  Subsidiaries  does  not  own  any  Capital  Stock  or                                  -                                                                                                                  Indebtedness of, or own or hold  any  Lien on  any  property of, the  Borrower or  any                                                                                                                   other Subsidiary of the Borrower which is not a Subsidiary of the Subsidiary to be so        then  exists,  the  equivalent  of  such  rating  by  any  Nationally  Recognized  Statistical                                                                                                                   designated or otherwise an Unrestricted Subsidiary; and        Rating Organization) at the time such Investment is made;                                                                                                            (b)    such designation and the Investment of the Borrower and the Restricted Subsidiaries  (h)   investment funds investing 95% of their assets in securities of the type described in                                                                                                                   in such Subsidiary complies with Section 4.05 hereof.        clauses (a) through (g) above (which funds may also hold reasonable amounts of cash        pending investment and/or distribution); and                                                              Any such designation by the Board of Directors of the Borrower shall be evidenced to                                                                                                                  the  Administrative  Agent  by  filing  with  the  Administrative  Agent  a  copy  of  the  (i)   investments  in  money  market  funds  complying  with  the  risk  limiting  conditions  of                                                                                                                  resolution of the Board of Directors of the Borrower giving effect to such designation        Rule 2a-7 (or any successor rule) of the SEC under the U.S. Investment Company Act                                                                                                                                      tificate  certifying  that  such  designation  complies  with  the        of 1940, as amended.                                                                                                                  foregoing conditions.   Total  Assets                                                                                                                 The Board of Directors of the Borrower may designate any Unrestricted Subsidiary to  Subsidiaries  as  shown  on  the  most  recent  consolidated  balance  sheet  of  the  Borrower                                                                                                                  be  a  Restricted  Subsidiary; provided  that  immediately  after  giving  effect  to  such  prepared on the basis of GAAP prior to the relevant date of determination calculated to give                                                                                                                  designation (1) no Default or Event of Default would result therefrom and (2) (x) the  pro  forma  effect  to  any  Purchase  and  Sales  that  have  occurred  subsequent  to  such  period,                                                                                                                  Borrower could Incur at least $1.00 of additional Indebtedness under Section 4.04(a)  including any such Purchase to be made with the proceeds of the Indebtedness giving rise to                                                                                                                  or  (y)  the  Consolidated  Net  Leverage  Ratio  would  be  no  higher  than  it  was  the need to calculate Total Assets.                                                                                                                  immediately prior to giving effect to such designation, in each case, on a pro forma                                                                                                                  basis  taking  into  account  such  designation.   Any  such  designation  by  the  Board  of                                                                                82                                                                                                         83                                                                                                              77626057_8                                                                                                77626057_8                                   EU-DOCS\25939615.7                                                                                        EU-DOCS\25939615.7 





 






                                                                                                                                                                                                  Directors shall be evidenced to the Administrative Agent by promptly providing the                                                                                     Schedule 1.01        Administrative Agent with a copy of the resolution of the Board of Directors giving                                                                                                                                                                                                   complied with the foregoing provisions.                                                                                                                                       Non-U.S. Security Documents   Voting  Stock                                                       Person  then  outstanding and normally entitled to vote in the election of directors.                                                                               Wholly Owned Subsidiary                                                                                     1.  An English law governed debenture, by and among the U.K. Loan Parties and the                                                                      unt of shares                                Collateral Agent.  required  to  be  owned  by  other  Persons  pursuant  to  applicable  law,  regulation  or  to  ensure  limited liability and (b) in the case of a Receivables Entity, shares held by a Person that is not           2.  An English law governed mortgage over shares, to be granted by  an  Affiliate  of  the  Borrower  solely  for  the  purpose  of  permitting  such  Person  (or  such                     over shares in Oatshare Ltd. and York UK Holdco International Limited                                                                                                                   respectively in favor of the Collateral Agent.  Receivables Entity, including without limitation the institution of bankruptcy, insolvency or  other similar proceedings, any merger or dissolution, and any change in charter documents or                 3.  A Hong Kong law governed debenture, by and among the Loan Parties organized in                                                                                                                   Hong Kong and the Collateral Agent.  other customary events) is owned by that Person directly or (2) indirectly by a Person that  satisfies the requirements of clause (1) of this definition.                                                 4.                                                                                                                                                                                    York Property                              orporate offices of the Target as well as                                                                                                               5.  A Luxembourg law governed receivables pledge agreement to be granted by York                                                                                                                                                                           Luxembourg Holdings International S.à r.l. over the intercompany receivables owed                                                                                                                   by its Restricted Subsidiaries in favor of the Collateral Agent.                                                                                                                6.  A Luxembourg law governed share pledge agreement to be granted by York UK                                                                                                                   Holdco International Limited over shares in York Luxembourg Holdings International                                                                                                                   S.à r.l. in favor of the Collateral Agent.                                                                                                                7.  A New York law governed share pledge supplement to be granted by York                                                                                                                   Luxembourg Holdings International S.à r.l. over shares in York Holdings                                                                                                                   International, Inc. in favor of the Collateral Agent.                                                                                                                                                                                                                                                                                                                  84    77626057_8                                                                                                77793112_6                                   EU-DOCS\25939615.7                                                       EU-DOCS\26043672.7 





 






                                                                                                                                                                                                                                                                                  SCHEDULE 1.09                                                                                 obstacle  or  otherwise  such  guarantee  or  Security  Document  shall  be                                                                                                                               subject to such limit;                                                                 AGREED SECURITY PRINCIPLES                                                                       (ii)  a key factor in determining whether or not a guarantee or security will                                                                                                                               be taken (and in respect of the security, the extent of its perfection and/or  1.    Agreed Security Principles                                                                                             registration) is the applicable time and cost (including adverse effects on                                                                                                                               non-U.S.  taxes,  interest  deductibility,  stamp  duty,  registration  taxes,        (a)   The guarantees and security to be provided under the Loan Documents by any                                       notarial  costs  and  all  applicable  legal  fees)  which  will  not  be              Non-U.S.  Loan  Party  or  by  any  U.S.  Loan  Party  with  respect  to  Collateral                             disproportionate  to  the  benefit  accruing  to  the  Secured  Parties  of              located outside the United States, any state thereof or the District of Columbia                                 obtaining such guarantee or security (as reasonably determined by the              will be given in accordance with the security principles set out in this Schedule                                Borrower);                   Agreed Security Principles                       bt,  the  Agreed              Security Principles shall not apply to any guarantees to be provided under the                             (iii) members of the Group will not be required to give guarantees or enter              Loan Documents by any U.S. Loan Party, nor to any security to be provided by                                     into  security  documents  if  they  are  not  wholly  owned  by  another              any U.S. Loan Party under a Security Document which is governed by the laws                                      member  of  the  Group  or  if  it  is  not  within  the  legal  capacity  of  the              of the U.S., any state thereof or the District of Columbia. Any security given by                                relevant members of the Group or if it would conflict with the fiduciary              a Non-U.S.  Loan Party over shares in  a Domestic Subsidiary or other assets                                     or statutory duties of their directors or contravene any applicable legal,              located in the United States, any state thereof or the District of Columbia shall                                regulatory or contractual prohibition or restriction or have the potential              be subject to the Agreed Security Principles and further be subject to the Credit                                to  result  in  a  material  risk  of  personal  or  criminal  liability  for  any              Agreement.  This  Schedule  identifies  the  Agreed  Security  Principles  and                                   director or officer of or for any member of the Group, provided that, to              addresses the manner in which the Agreed Security Principles will impact on                                      the  extent  requested  by  the  Administrative  Agent  before  signing  any              and determine the extent of the guarantees and security proposed to be provided                                  applicable  security  document  or  accession  certificate,  the  relevant              in relation to the Obligations. For purposes of these Agreed Security Principles,                                member  of  the  Group  shall  use  commercially  reasonable  efforts  (but               Acceleration  Event                                                                                             without  incurring  material  cost  and  without  adverse  impact  on              Obligations under Section 7.01 of the Credit Agreement.                                                          relationships  with  third  parties)  to  overcome  any  such  obstacle  or                                                                                                                               otherwise such security document shall be subject to such limit;        (b)   The Agreed Security Principles embody a recognition by all parties that there              may  be  certain  legal  and  practical  difficulties  in  obtaining  effective  or                        (iv)  the maximum granted or secured amount may be limited to minimize              commercially reasonable guarantees and/or security from all relevant members                                     stamp duty, notarization, registration or other applicable fees, taxes and              of the group constituted by Parent Guarantor, the Borrower, and the Restricted                                   duties where the benefit of increasing the guaranteed or secured amount                                        Group                                                                                  is disproportionate to the level of such fee, taxes and duties;              agreed  that  guarantees  and  security  will  be  granted  by  those  members.  In              particular:                                                                                                (v)   where a class of assets to be secured includes material and immaterial                                                                                                                               assets,  if  the  cost  of  granting  security  over  the  immaterial  assets  is              (i)    general legal and statutory limitations, regulatory restrictions, financial                               disproportionate to the benefit of such security, security will be granted                     assistance,  corporate  benefit,  fraudulent  preference,  equitable                                      over the material assets only;                                                                                                                         (vi)  it  is  expressly  acknowledged  that  it  may  be  either  impossible  or                                                                                                                               impractical to create security over certain categories of assets in which                     rules, tax restrictions, retention of title claims, employee consultation or                              event security will not be taken over such assets;                     approval requirements and similar principles may limit the ability of a                                                                                                                         (vii) any  asset  subject  to  a  legal  requirement,  contract,  lease,  license,                     member of the Group to provide a guarantee or security or may require                                                                                                                               instrument  or  other  third  party  arrangement,  which  may  prevent  or                     that the guarantee or security be limited as to amount or otherwise and,                                                                                                                               condition the asset from being charged, secured or being subject to the                     if so, the guarantee or security will be limited accordingly, provided that,                                                                                                                               applicable  Security  Document  (including  requiring  a  consent  of  any                     to the extent requested by the Administrative Agent before signing any                                                                                                                               third party, supervisory board or works council (or equivalent)) and any                     applicable  Security  Document,  joinder,  supplement  or  accession                                                                                                                               asset which, if subject to the applicable Security Document, would give                     certificate, the relevant  member  of the  Group  shall use commercially                                                                                                                               a  third  party  the  right  to  terminate  or  otherwise  amend  any  rights,                     reasonable  efforts  (but  without  incurring  material  cost  and  without                                                                                                                               benefits and/or obligations with respect to any member of the Group in                     adverse impact on relationships with third parties) to overcome any such                                                                                                                               respect of the asset or require the grantor to take any action (other than                                                                                                                               the granting and perfection of the guarantee and security interest itself)                                                                                                                                                   2                                                                                                              77612334_6                                                                                                77612334_6                                   EU-DOCS\26056948.5                                                                                        EU-DOCS\26056948.5 





 






                   materially adverse to the interests of the Group or any member thereof,                                   costs, fees or expenses that result from any assignment or transfer by a                     in each case will be excluded from a guarantee or Security Document                                       Secured Party);                     provided  that  the  Group  shall  use  commercially  reasonable  efforts to                     obtain consent to charging any asset (where otherwise prohibited) if the                            (xii) no title investigations or other diligence on assets will be required and                     Administrative  Agent  specifies  prior  to  the  date  of  the  applicable                               no title insurance will be required;                     Security Document, joinder, supplement or accession certificate that the                     asset is material and the Borrower is satisfied (acting reasonably) that                            (xiii) security will not be required over any assets subject to security in favor                     such  commercially  reasonable  efforts  will  not  involve  placing                                      of a third party or any cash constituting regulatory capital or customer                     relationships with third parties in jeopardy save that, unless prohibited,                                cash (and shall be excluded from any relevant Security Document);                     this  shall  not  prevent  security  from  being  given  over  any  receipt  or                     recovery under the relevant contract, lease or license;                                             (xiv) to the extent legally effective, all security will be given in favor of the                                                                                                                               Collateral  Agent  and  not  the  Secured  Parties  individually  (with  the              (viii) the giving of a guarantee, the granting of security and the registration                                  Collateral  Agent  to  hold  one  set  of  security  documents  for  all  the                     and/or the perfection of  the security granted will not be required if it                                 Secured Parties);                      would  have  a  material  adverse  effect  on  the  ability  of  the  relevant                     member  of  the  Group  to  conduct  its  operations  and  business  in  the                        (xv)                         will be used where necessary; and                     ordinary  course  as  otherwise  permitted  by  the  Loan  Documents                                                                                                                         (xvi) the Secured Parties (or any agent or similar representative appointed by                     (including  dealing  with  the  secured  assets  and  all  contractual                                                                                                                               them  at  the  relevant  time)  will  not  be  able  to  exercise  any  power  of                     counterparties  or  amending,  waiving  or  terminating  (or  allowing  to                                                                                                                               attorney  or  set-off  granted  to  them  under  the  terms  of  the  Loan                     lapse)  any  rights,  benefits  or  obligations,  in  each  case  prior  to  an                                                                                                                               Documents prior to the occurrence of an Acceleration Event which is                     Acceleration Event which is continuing), and any requirement under the                                                                                                                               continuing (unless, in the case of a power of attorney the relevant Loan                     Agreed Security Principles to seek consent of any Person or take or not                                                                                                                               Party  has  failed  to  comply  with  a  further  assurance  or  perfection                     take any other action shall be subject to this paragraph (viii);                                                                                                                               obligation (and any grace period applicable thereto has expired)).              (ix)   any Security Document will only be required to be notarized if required                                                                                                                   (c)   Notwithstanding any term of any Loan Document,                      by  law  in  order  for  the  relevant  security  to  become  effective  or                     admissible in evidence;                                                                             (i)   no Obligation under any Loan Document, Swap Contract or Treasury                                                                                                                               Services  Agreement  may  be  guaranteed  by  any  Excluded  Subsidiary              (x)    no guarantee from, or security will be required to be given by, Persons                                                                                                                               (other than any Excluded Subsidiary referred to under clause (10) of the                     or over (and no consent shall be required to be sought with respect to)                                                                                                                               definition  thereof) or secured by  any  Excluded Asset  (other than any                     assets which are required to support acquired Indebtedness to the extent                                                                                                                               Excluded Asset referred to under clause (n) of the definition thereof);                     such  acquired  Indebtedness  is  permitted  by  the  Credit  Agreement  to                                                                                                                               and                     remain outstanding after an acquisition. No member of a target group                     acquired  pursuant  to  an  acquisition  not  prohibited  by  the  Credit                           (ii)  Security by Non-U.S. Loan Parties shall only by required to be provided:                      Agreement shall be required to become a Guarantor or grant security in                     favor of the Obligations if prevented by the terms of the documentation                                   (A)   in respect of any U.K. Loan Party, pursuant to an English law                     governing that acquired Indebtedness; no security will be granted over                                          debenture (in respect of, and including a floating charge over, all                     any  asset secured  for the benefit of any Indebtedness permitted to be                                         of its assets and an English law share mortgage (in respect of the                     incurred under Section 4.04 of Annex I to the Credit Agreement (other                                           shares  in  that  Loan  Party  and  a  foreign  law  share  pledge  (in                     than  Indebtedness  constituting  Obligations)  and/or  to  the  extent                                         respect of the shares held by that U.K. Loan Party in any other                     constituting Liens permitted to be incurred under Section 4.06 of Annex                                         Restricted Subsidiary located in a Covered Jurisdiction), and no                     I to the Credit Agreement (other than Liens securing the Obligations);                                          collateral over any other asset or class of asset shall be required;                (xi)   to  the  extent  possible  and  unless  required  by  applicable  Law,  there                             (B)   in respect of any Loan Party organized under the laws of Hong                     should be no action required to be taken in relation to the guarantees or                                       Kong, pursuant to a Hong Kong law debenture (in respect of, and                     security when any lender assigns or transfers any of its participation to                                       including a  floating charge over, all of its assets) and  a Hong                     a new lender (and, unless explicitly agreed to the contrary in the Credit                                       Kong law share mortgage (in respect of the shares in that Loan                     Agreement, no member of the Group shall bear or otherwise be liable                                             Party), and no collateral over  any other asset or class of asset                     for any taxes, any notarial, registration or perfection fees or any other                                       shall be required; and                                           3                                                                                                         4                                                                                                              77612334_6                                                                                                77612334_6                                   EU-DOCS\26056948.5                                                                                        EU-DOCS\26056948.5 





 






                   (C)   in  respect  of  any  Loan  Party  organized  under  the  laws  of               4.     Terms of security documents                           Luxembourg,  pursuant  to  a  Luxemburg  law  governed                           receivables pledge agreement over the intercompany receivables                          The following principles will be reflected in the terms of any security taken in favor of                           owed by Restricted Subsidiaries, a Luxembourg law governed                              the Obligations:                           share pledge agreement in respect of shares of that Luxembourg                           Loan  Party  and  a  foreign  law  share  pledge  (in  respect  of  the                 (a)   the security will be first ranking, to the extent possible;                           shares held by that Loan Party in any other Restricted Subsidiary                           located in any other Covered Jurisdiction), and no collateral over                      (b)   security will not be enforceable until the occurrence of an Acceleration Event;                           any other asset or class of asset shall be required; and                                                                                                                    (c)   the beneficiaries of the security or the Administrative Agent will only be able                     (D)   in respect of any Non-U.S. Loan Party organized under the laws                                to  exercise  a  power  of  attorney  following  the  occurrence  of  an  Acceleration                           of any other Covered Jurisdiction, over such assets or classes of                             Event which is continuing or where the relevant Loan Party has failed to comply                           asset  as  mutually  agreed  between  the  Borrower  and  the                                 with  a  further  assurance  or  perfection  obligation  (and  any  grace  period                           Administrative Agent.                                                                         applicable thereto has expired);   2.    Guarantees                                                                                                 (d)   the Security  Documents should only operate to create security rather than to                                                                                                                         impose new commercial obligations or repeat clauses in other Loan Documents;        Subject to the guarantee limitations set out in the Loan Documents, each guarantee will                          accordingly (i) they should not contain additional representations, undertakings        be an upstream, cross-stream and downstream guarantee for all liabilities of the Loan                            or  indemnities  (including,  without  limitation,  in  respect  of  insurance,        Parties under the Loan Documents in accordance with, and subject to, the requirements                            information, maintenance or protection of assets or the payment of fees, costs        of  these  Agreed  Security  Principles  in  each  relevant  jurisdiction  (references  to                       and expenses) unless these are the same as or consistent with those contained in                                                                                                                         the Credit Agreement and are required for the creation or perfection of security        secure the guarantee obligations of the relevant security provider or, if such security is                       (or  to maintain  the security interest created thereby);  and (ii)  nothing in any        provided  on  a  third  party  basis,  all  liabilities  of  the  Loan  Parties  under  the  Loan                Security Document shall (or be construed to) prohibit any transaction, matter or        Documents, in each case in accordance with, and subject to, the requirements of these                            other  step  (or  a  Grantor  taking  or  entering  into  the  same  or  dealing  in  any        Agreed Security Principles in each relevant jurisdiction.                                                        manner  whatsoever  in  relation  to  any  asset   (including  all  rights,  claims,                                                                                                                         benefits, proceeds and documentation, and contractual counterparties in relation  3.    Governing law and scope                                                                                          thereto)) the subject of (or expressed to be the subject of) the security agreement                                                                                                                         if not prohibited by the terms of the other Loan Documents;        (a)   To the extent otherwise consistent with these Agreed Security Principles and              subject to the provisions of the Loan Documents, guarantees and security will                        (e)   no  security  will  be  granted  over  parts,  stock,  moveable  plant,  equipment  or              be provided only by members of the Group organized in the United States, any                               receivables  if  it  would  require  labelling,  segregation  or  periodic  listing  or              state  thereof  or  the  District  of  Columbia,  England  and  Wales,  Luxembourg,                        specification of such parts, stock, moveable plant, equipment or receivables;             Hong  Kong  and  other  jurisdictions  notified  by  the  Borrower  to  the              Administrative  Agent  and  mutually  agreed  by  the  Borrower  and  the                            (f)   in  no  event  shall  control  agreements  (or  perfection  by  control  or  similar                                   Covered Jurisdictions                                                                 arrangements)  be  required  with  respect  to  any  assets  (including  deposit  or              is  organized  in  a  Covered  Jurisdiction,  such  jurisdiction  shall  cease  to  be  a                  securities  accounts)  (unless  the  Loan  Documents  expressly  provide  for  any              Covered Jurisdiction.                                                                                      specific  account  (by  reference  to  its  purpose)  to  be  subject  to  specific                                                                                                                         restrictions on use);        (b)   All security (other than share security over members of the Group incorporated              in a Covered Jurisdiction and security over any  intercompany loans between                          (g)   security will, where possible and practical, automatically create security over              members  of  the  Group)  will  be  governed  by  the  law  of  the  jurisdiction  of                      future assets of the same type as those already secured; where applicable Law              incorporation  of  the  applicable  Grantor  and  no  action  in  relation  to  security                   requires supplemental  pledges or notices to  be delivered in  respect  of future              (including any perfection step, further assurance step, filing or registration) will                       acquired assets in order for effective security to be created over that class of              be required in jurisdictions where the Grantor is not incorporated. Share security                         asset, such supplemental pledges or notices will be provided only upon request              over any Subsidiary incorporated in a Covered Jurisdiction will be governed by                             of the Administrative Agent  and at intervals no more frequent than annually              the law of that Covered Jurisdiction. Any security over an intercompany loan                               (unless required more frequently under applicable Law); and              between any members of the Group will be governed by either (i) the governing              law of the relevant intercompany loan document or (ii) the governing law of the                      (h)   each security document must contain a clause which records that if there is a              place of incorporation of the relevant lender of the intercompany loan, in each                            conflict  between  any  Security  Document  and  the  Credit  Agreement  or  any              case, only to the extent such governing law is within a Covered Jurisdiction.                              Intercreditor  Agreement  then  (to  the  fullest  extent  permitted  by  law)  the                                         5                                                                                                         6                                                                                                              77612334_6                                                                                                77612334_6                                   EU-DOCS\26056948.5                                                                                        EU-DOCS\26056948.5 





 






            provisions  of  the  Credit  Agreement  or  (as  applicable)  such  Intercreditor                    A  member  of  the  Group  may  grant  security  over  its  material  insurance  policies              Agreement will take priority over the provisions of such Security Document.                          (excluding any third party liability or public liability insurance and any directors and                                                                                                                   officers insurance provided that the relevant insurance policy allows security to be so  5.    Bank accounts                                                                                              granted). Notice of any security interest over insurance policies will only be served on                                                                                                                   an insurer of the Group assets upon written request of the Administrative Agent, which        (a)   If a Loan Party grants security over its material bank accounts it will be free to                   may only be given after the occurrence of an Acceleration Event which is continuing.              deal,  operate  and  transact  business  in  relation  to  those  accounts  (including               Prior to an Acceleration Event which is continuing, no loss payee or other endorsement              opening and  closing accounts) until the occurrence of an Acceleration Event                         will be made on the insurance policy and no Secured Party will be named as coinsured.              which  is  continuing  (unless  the  Loan  Documents  expressly  provide  for  any              specific  account  (by  reference  to  its  purpose)  to  be  subject  to  specific           8.     Intellectual property             restrictions on use). For the avoidance of doubt, (unless the Loan Documents              expressly provide for any specific account (by reference to its purpose) to be                       (a)   No  security  will  be  granted  over  any  intellectual  property  which  cannot  be                                                                                                                         secured under the terms of the relevant licensing agreement.              bank  accounts,  cash  or  receivables  or  any  obligation  to  hold  or  pay  cash  or              receivables in a particular account until the occurrence of an Acceleration Event                    (b)   If security is granted over the relevant material intellectual property, the grantor              which is continuing.                                                                                       shall be free to deal with, use, license and otherwise commercialize those assets                                                                                                                         in the course of its business (including allowing its intellectual property to lapse        (b)                                                                                                              if  no  longer  material  to  its  business)  until  an  Acceleration  Event  which  is              security and if possible without disrupting operation of the account, notice of                            continuing.              the security will be served on the account bank in relation to applicable accounts              within 10 Business Days of the date of the applicable Security Document (or                          (c)   Notice of any security interest over intellectual property will only be served on              accession  thereto)  and  the  applicable  Grantor  will  use  its  commercially                           a third party from whom intellectual property is licensed upon written request              reasonable  efforts  to  obtain  an  acknowledgement  of  that  notice  within  20                         of the Administrative Agent, which may only be given after the occurrence of              Business Days of service. If the applicable Grantor has used its commercially                              an Acceleration Event which is continuing. Subject to the following sentence,              reasonable  efforts  but  has  not  been  able  to  obtain  acknowledgement  or                            no intellectual property security will be required to be registered under the law              acceptance its obligation to obtain acknowledgement will cease on the expiry                               of  that  security  document,  the  law  where  the  grantor  is  regulated,  or  at  any              of that 20 Business Day period. Irrespective of whether notice of the security is                          applicable supra-national registry. If required under local law for the perfection              required for perfection, if the service of notice would prevent any member of                              of  the  security  and  subject  always  to  the  general  principles  set  out  in  these              the Group from using a bank account in the course of its business no notice of                             Agreed Security Principles, security over intellectual property will be registered              security will be served until the occurrence of an Acceleration Event which is                             in the registry of the jurisdiction in which the grantor of the security is resident              continuing.                                                                                                or at a relevant supra-national registry (such as the European Union). Security         (c)   Any security over bank accounts will be subject to any security interests in favor                         the  Group  will  not  be  required  to  procure  any  changes  to,  or  corrections  of              of the account bank which are created either by law or in the standard terms and                           filings on, external registers.              conditions  of  the  account  bank.  No  Grantor  will  be  required  to  change  its              banking arrangements or standard terms and conditions in connection with the                  9.     Receivables              granting of bank account security.                                                                                                                   If a Loan Party grants security over any of its receivables it will be free to deal with,        (d)   If required under applicable Law, security over bank accounts will be registered                     amend,  waive  or  terminate  those  receivables  in  the  course  of  its  business  until  the              subject to the general principles set out in these Agreed Security Principles.                       occurrence of an Acceleration Event which is continuing. No notice of security may be                                                                                                                   prepared or served until the occurrence of an Acceleration Event which is continuing.  6.    Fixed assets                                                                                               Any list of receivables will not include details of the underlying contracts and will not                                                                                                                   be required to be updated. If required under applicable Law, security over receivables        If a Loan Party grants security over its material fixed assets it will be free to deal with                will  be  registered  subject  to  the  general  principles  set  out  in  these  Agreed  Security        those assets in the course of its business until the occurrence of an Acceleration Event                   Principles.        which is continuing. No notice, whether to third parties or by attaching a notice to the        fixed assets, will be prepared or given until the occurrence of an Acceleration Event               10.    Shares        which is continuing.                                                                                                                   (a)   Security over shares will be limited to those over a Loan Party or a Restricted  7.    Insurance policies                                                                                               Subsidiary  other  than  an  Immaterial  Subsidiary,  or  an  Excluded  Subsidiary                                          7                                                                                                         8                                                                                                              77612334_6                                                                                                77612334_6                                   EU-DOCS\26056948.5                                                                                        EU-DOCS\26056948.5 





 






                                                                                                                                                                                                        (other than to the extent such shares would not constitute an Excluded Asset                                                                                     Schedule 2.01              pursuant to clause (l) of the definition thereof).                                                                                                                                      Lenders and Commitments        (b)   Until an Acceleration Event has occurred and is continuing, the legal title of the              shares will remain with the relevant Grantor (unless transfer of title on granting                          such security is customary in the applicable jurisdiction) and any Grantor of              share  security  will  be  permitted  to  retain  and  to  exercise  voting  rights  and      On file with Administrative Agent.             powers  in  relation  to  any  shares  and  other  related  rights  charged  by  it  and              receive,  own  and  retain  all  assets  and  proceeds  in  relation  thereto  without              restriction or condition provided that any exercise of rights does not materially              adversely affect the validity or enforceability of the security over the shares or              cause an Event of Default to occur.         (c)   Where customary and applicable as a matter of law, on, or as soon as reasonably              practicable following execution of the applicable Security Document, joinder,              supplement  or accession  certificate, the  applicable share  certificate  (or  other              documents  evidencing  title  to  the  relevant  shares)  and  a  stock  transfer  form              executed  in  blank  (or  applicable  Law  equivalent)  will  be  provided  to  the              Administrative Agent.         (d)   Unless  the  restriction  is  required  by  law  or  regulation,  the  constitutional              documents of the Loan Party or Restricted Subsidiary whose shares are to be              charged  will  be  amended  to  remove  any  restriction  on  the  transfer  or  the              registration of the  transfer of the  shares  on the  taking  or  enforcement of  the              security granted over them.                                                    9    77612334_6                                                                                                77793112_6                                   EU-DOCS\26056948.5                                                       EU-DOCS\26043672.7 





 






                                                                                                                                                                                                                                                                           Schedule 3.01                                                                                           Schedule 3.08(c)                                                                                                                                               Organizational Information of Loan Parties                                                                           Existing Indebtedness                                   (as of the Effective Date)                                                                                                                                                                               None.                                                                                           Name                      Type               Jurisdiction  Org. No.     Tax ID  BidFair MergeRight Inc.   Corporation        Delaware      7459106      37-1947586  BidFair Holdings Inc.     Corporation        Delaware      7600729      61-1944740                                                                  77793112_6                                                                                                77793112_6        EU-DOCS\26043672.7                                                                                        EU-DOCS\26043672.7 





 






                                                                                                                                                                                                                           Schedule 3.12(c)                                                  U.K. Pension Plans           1.            1971 and currently governed by a Third Consolidated Trust Deed and Rules dated 30            March 2004 as amended.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Schedule 3.13                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Subsidiaries; Capital Stock                                                                                                                                                                                                                   (as of the Effective Date)                                                                                                                                                                                                                                                                              Percentage                                                                                                                                                             Entity Name                                 Type of Entity     Jurisdiction          Owner                                                                                                                                                                                                                                                                             Owned                                                                                                                                                              BidFair MergeRight Inc.                     Corporation        Delaware              BidFair Holdings Inc.      100%                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           77793112_6                                                                                                                                                            EU-DOCS\26043672.7    77793112_6  EU-DOCS\26043672.7 





 






                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       Percentage                                                                                                                                                           Schedule 5.14(a)                                                     Entity Name                                   Type of Entity               Jurisdiction             Owner                                                                                                                                                                                                                                                                                                                                                                   Owned                                                                       Initial U.S. Loan Party                                                                                                                                  LLC                                                                                                 Partners                                                                                                                                                                                                                                 Art Agency Partners Holdings LP                   Limited                  Delaware                 Art Agency                     100%                                                                                                                                              Percentage                                                                                                                          Partnership                                       Partners           Entity Name                                  Type of Entity                Jurisdiction             Owner                                                                                                                                              Owned                                                                                                                                                                                 Holdings GP                                                             Corporation              Delaware                 N/A                            N/A                                                                                                                                                                                   LLC           SPTC, Inc.                                        Corporation              Nevada                                                  100%                                                                              Art Agency Partners Holdings,                     LLC                      Delaware                 Art Agency                     100%                       Fine Art Holdings, Inc.               Corporation              Delaware                                                100%                                                                              LLC                                                                                                 Partners                                                             LLC                      Delaware                                                100%                                                                                                                                                                                  Holdings LP                                                             Corporation              Nevada                   SPTC, Inc.                     100%                                                                              Art Agency Partners Management                    LLC                      Delaware                 Art Agency                     100%           York Holdings International, Inc.                 Corporation              Delaware                 York                           100%                                                                              GP, LLC                                                                                             Partners                                                                                                               Luxembourg                                                                                                                                                                                                           Holdings LLC                                                                                                               Holdings                                                                                                         Art Agency Partners Management,                   Limited                  Delaware                 Art Agency                     50%                                                                                                               International                                                                                                    L.P.                                              Partnership                                       Partners                                                                                                               S.a.r.l.                                                                                                                                                                                                             Holdings LLC                                                             Corporation              New York                 York Holdings                  100%                                                                                                                                                                                  Art Agency                     50%                                                                                                               International                                                                                                                                                                                                        Partners                                                                                                               Inc.                                                                                                                                                                                                                 Management           Viyet, LLC                                        LLC                      Delaware                                                100%                                                                                                                                                                                  GP, LLC           Thread Genius Inc.                                Corporation              Delaware                                                100%                                                                              Art Agency Partners Appraisals,                   LLC                      Delaware                 Art Agency                     100%                                                             Corporation              New York                                                100%                                                                              LLC                                                                                                 Partners           Sothebys.com LLC                                  LLC                      Delaware                                                100%                                                                                                                                                                                  Holdings LLC           72nd and York, Inc.                               Corporation              New York                                                100%                                                                              Art Agency Partners, LLC                          LLC                      Delaware                 Art Agency                     100%           SIBS, LLC                                         LLC                      New York                                                100%                                                                                                                                                                                  Partners           York Avenue Development, Inc.                     Corporation              New York                                                100%                                                                                                                                                                                  Holdings LLC                                                             Corporation              Michigan                                                100%                                                                              Art Agency Partners Advisory,                     LLC                      Delaware                 Art Agency                     100%           Inc.                                                                                                                                                                                                                 LLC                                                                                                 Partners           Sothebys.com Auctions, Inc.                       Corporation              New York                                                100%                                                                                                                                                                                  Holdings LLC                                                             Corporation              Delaware                                                100%                                                                              Art Agency Partners Investment,                   LLC                      Delaware                 Art Agency                     100%           Sotheby Parke Bernet Inc.                         Corporation              Delaware                                                100%                                                                              LLC                                                                                                 Partners                                                                                                                                                                                                                                                                                                                                    Holdings LLC                                                             LLC                      New York                                                100%                                                                                                                                                                                                                                                                                  Corporation              Delaware                                                100%           JSA Art Management LLC                            LLC                      Delaware                                                100%                                                                              Theta, Inc.           Art Agency Partners Holdings GP                   LLC                      Delaware                 Art Agency,                    100%                                                                                                                                                                                                                                    77793112_6                                                                                                                                                                                                           77793112_6  EU-DOCS\26043672.7                                                                                                                                                                                                   EU-DOCS\26043672.7 





 






                                                                                                                                                                                                                                                                                                                                                Schedule 5.14(c)                                                                                                                 Luxembourg Documents:                                                                                                                 The  Administrative  Agent  shall  have  received  in  form  reasonably  satisfactory  to  the                                                                                                                Administrative  Agent  from  each  Guarantor  organized  under  the  laws  of  Luxembourg  (a                                                                                                                 Luxembourg Guarantor                                                                                                               of the Joinder Agreement (attached as Annex I to the Facility Guaranty) in order to become a party                                                                                                                to the Facility Guaranty attaching, the resolutions (or extracts of them) of the board of managers                                                                                                                of the Luxembourg Guarantor approving, among others, the Joinder Agreement, a copy of the                                                                                                                articles  of  association of  the Luxembourg  Guarantor  and including  specimen  signatures  of the                                                                                                                responsible officers or managers of the Luxembourg Guarantor.  The Officer's Certificate shall                                                                              Schedule 5.14(b)                  also attach (i) a copy of an excerpt of the Luxembourg Companies' Register (as defined in the                                   Initial Non-U.S. Loan Party                                                  Credit Agreement) pertaining to the Luxembourg Guarantor and dated as of the date of the Joinder                                   Type of                                   Percentage                          Agreement,  (ii) a  copy  of  a  certificate  of  non-registration  of  judgments  (certificats  de  non-         Entity Name                           Jurisdiction Owner                                  Entity                                    Owned                                                             ), issued by the Luxembourg Companies Register pertaining          York UK Holdco International Limited  England and                 100%                                to the Luxembourg Guarantor and dated as of the date of the Joinder Agreement and certifying          Limited                 Company       Wales          York Luxembourg Holdings Corporation  Luxembourg  York UK         100%                                that as of the date of the day immediately preceding the date of such certificate, the Luxembourg          International S.à r.l.                            Holdco                                              Guarantor  has  not  been  declared  bankrupt  (en faillite), and that it has not applied for general                                                            International                                                            Limited                                             settlement or composition with creditors (concordat préventif de faillite), controlled management                                  Limited       Hong Kong                   100%                                (gestion  contrôlée),  or  reprieve  from  payment  (sursis  de  paiement),  judicial  or  voluntary          (                       Company           Oatshare Limited        Limited       England and                 100%                                liquidation (liquidation judiciaire ou volontaire), such other proceedings listed at Article 13, items                                  Company       Wales                                                           2  to  12,  and  Article 14  of  the  Luxembourg  Act  dated  December 19,  2002  on  the  Register  of                                  Limited       Hong Kong                   100%          Limited (               Company                   Kong Limited                                        Commerce  and  Companies,  on  Accounting  and  on  Annual  Accounts  of  the  Companies  (as                                                            (                                                   amended from time to time), (and which include foreign court decisions as to faillite, concordat                                                                                                                or analogous procedures according to the Insolvency Regulation), (iii) a solvency certification                                  Unlimited     England and Oatshare        100%                                  Company       Wales       Limited                                             stating that as of the date of the Joinder Agreement that the Luxembourg Guarantor is not subject                                  Limited       England and                 100%                                to  nor,  as  applicable,  does  it  meet  or  threaten  to  meet  the  criteria  of  bankruptcy  (faillite),                                  Company       Wales          Catalogue Distribution  Limited       England and                 100%                                insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition          Company Limited         Company       Wales                                                           with  creditors  (concordat  préventif  de  la  faillite),  controlled  management  (gestion  contrôlée),                                  Limited       England and                 100%          Limited                 Company       Wales                                                           reprieve from payment (sursis de paiement), general settlement with creditors, reorganization or                                                                                                                similar laws affecting the rights of creditors generally and no application has been made or is to                                                                                                                be made by its director/manager or, as far as it is aware, by any other Person for the appointment                                                                                                                of  a commissaire,  juge-commissaire,  liquidateur,  curateur  or  similar  officer  pursuant  to  any                                                                                                                voluntary or judicial insolvency, winding-up, liquidation or similar proceedings, (iv) certification                                                                                                                that each copy document relating to it specified in this Schedule 5.14(c) is correct, complete and   77793112_6                                                                                                    (to the extent executed) in full force and effect and has not been amended or superseded prior to  EU-DOCS\26043672.7                                                                                            the date of the Joinder Agreement, and (v) certification that securing or guaranteeing under the                                                                                                                Loan Documents to which the Luxembourg Guarantor is a party, as appropriate, would not cause                                                                                                                any securing, guaranteeing or similar limit binding on it to be exceeded.                                                                                                                                                                                                                                    





 






                                                                                                                                                                                                                                                                                U.K. Documents:                                                                                                                                     The Administrative Agent shall have received in form reasonably satisfactory to the                                                                                          Schedule 9.01(a)  Administrative Agent from each U.K. Loan Party, subject to the Agreed Security Principles:                                                                                                                                                                         (i)    Copies of the notices (if any) required to be sent under the Security Documents  governed by the law of England and Wales executed by each of the Loan Parties which are required  to be delivered, under the terms of the relevant Security Document, on the date of such Security  Document.                                                                                                  None.                                                                                                                      (ii)   All original share certificates, transfers and stock transfer forms or equivalent duly  executed by each Loan Parties incorporated in England and Wales in blank in relation to the assets  subject to or expressed to be subject to the Security Documents and other documents of title to be  provided under the Security Documents         (iii)  A copy of a resolution signed by all the holders of the issued shares in each Loan  Parties  incorporated  in  England  and  Wales,  approving  the  terms  of,  and  the  transactions  contemplated by, the Loan Documents to which the such Loan Party is a party.         (iv)   A certificate of each U.K. Loan Party confirming that borrowing or guaranteeing  or securing, as appropriate, the total commitments would not cause any borrowing, guarantee,  security or similar limit binding on any such U.K. Loan Party to be exceeded.         (v)    A certificate of an authorised signatory of each U.K. Loan Party certifying that each  copy document relating to it specified herein is correct, complete and in full force and effect and  has not been amended or superseded as at a date no earlier than the date of this Agreement.         (vi)   In respect of each company incorporated in the United Kingdom whose shares are                                     Charged Company                      (A)                                                                           (1)    each member of the Group has complied within the relevant timeframe            with any notice it has received pursuant to Part 21A of the Companies Act 2006 from            that Charged Company; and                   (2)            Schedule 1B of the Companies Act 2006) has been issued in respect of those shares,             the Companies Act 2006) of that Charged Company, which, in the case of a Charged            Company that is a member of the Group, is certified by an authorised signatory of the            parent to be correct, complete and not amended or superseded as at a date no earlier            than the date of this Agreement; or             (B)   a  certificate  of  an  authorised  signatory  of  the  parent  certifying  that  such      Charged Company is not required to comply with Part 21A of the Companies Act 2006.                                                                                                               77793112_6                                                                                                             EU-DOCS\26043672.7 





 






                                                                                                                                                                                                                                                                 Schedule 9.01(b)                         Attn: Trade Finance Operations                                                                                                                                                                                                                          (b) Contact information:                                                                                                                                                                                                                          Fax Number: (973) 988-4471                                                                                                              Email address: dl.nytfstandby@us.bnpparibas.com  1. Notices:                                                                                                                                                                                                             2. Account Information:  1.1 Administrative Agent:                                                                                      All notices to be delivered to:                                                                            2.1. Administrative Agent:    (a) Address:                                                                                               WIRE INSTRUCTIONS                                                                                                                     Name of Bank            BNP PARIBAS  BNP Paribas   787 Seventh Avenue,                                                                                        ABA No.                 026-007-689 New York, NY 10019  Attn: Charles Romano and Yuqiao Lin                                                                        Name of Account         New York Branch Clearing Account                                                                                                             Account Number          10313000103  (b) Contact information:                                                                                                             Routing Number          BNPAUS3NXXX  Tel Number:    (212) 841-2968                                                                              Reference:              BidFair MergeRight Inc.               (212) 340-5374  Email address: charles.romano@us.bnpparibas.com                yuqiao.lin@us.bnpparibas.com                                                                                                                For purpose of payments and matters relating to loans  with a copy to the following:                                                                                                                 (a) Address:          BNP Paribas RCC, Inc., as agent for BNP Paribas  525 Washington Blvd.  Jersey City, New Jersey 07310  Attn: Loan Servicing    (b) Contact information:    Fax Number: (201) 616-7912  Email address: NYLS.AGENCY@us.bnpparibas.com    For purpose relating to  Letters of Credit   with a copy to the following:    (a) Address:    BNP Paribas RCC, Inc., as agent for BNP Paribas  525 Washington Blvd.  Jersey City, New Jersey 07310   77793112_6                                                                                                 77793112_6  EU-DOCS\26043672.7                                                                                         EU-DOCS\26043672.7 





 






                                                                                                                                                                                                                          Exhibit A                                 Account Name:                                                                                to the Credit Agreement                                 Account #:                                                                                                                                           Attn:                                          ADMINISTRATIVE QUESTIONNAIRE                                                                          Deal:                                                                                                                                                                                                                                                                                                                                                                            I.     ADMINISTRATIVE QUESTIONNAIRE  Please complete the following and return by email to: nyls.agency@us.bnpparibas.com and  bnpp.synd.primary.agency@us.bnpparibas.com and your sales representative.     Full legal name to appear on signature block:                                                                                                                                       Bank name to appear in any publicity (tombstone):                                                                       Legal Lending Office Address:                                                                                                                                                       Tax ID Number:                                                Contacts:                                                                                                                     Credit                   Primary                                    Secondary  Name:                                               Address:                                                                                                Phone:                                              Fax:                                                E-mail                                                Legal Counsel                                     Financials  Name:                                               Address:                                                                                                Phone:                                              Fax:                                                E-mail                                                Administrative / Operations:                        Loans                                             Letters of Credit  Name:                                               Address:                                                                                                Phone:                                              Fax:                                                E-mail                                                Payment Instructions (Please specify where funds, i.e. interest, letter of credit fees, commitment fees,  repayment of loans, should be wired.):  Bank Name:           Address:             ABA#:                  EU-DOCS\26045402.3                                                                                                              77785246_6  77785246_6                                                                                                                      EU-DOCS\26045402.3 





 






                                                                                                                                                                                                                                                                       Exhibit B                                5.    Credit Agreement:        Credit  Agreement  dated  as  of  October  2,  2019  (as                                                              to the Credit Agreement                                                             amended, modified, supplemented or restated from                                                                                                                                                                    Credit  Agreement                    FORM OF ASSIGNMENT AND ACCEPTANCE                                                                                            BidFair  MergeRight  Inc.,  a  Delaware  corporation                                                                                                                                                  (which on the Closing Date shall be merged with,                                                          Assignment the Effective Date set forth below and is entered into by and between [Insert name of Assignor]                                                  Company      Assignor      Insert name of Assignee  Assignee                                                                                                         Borrower ,  the  Lenders  from  time  defined herein shall have the meanings given to them in the Credit Agreement identified below                                                   to time parties thereto, the Administrative Agent for                                                                 Credit Agreement                                                                 the  Lenders  and  Deutsche  Bank  Trust  Company  receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and                                                      Americas, as Collateral Agent.  Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by  reference and made a part of this Assignment as if set forth herein in full.                                     6.    Assigned Interest:                For an agreed consideration, the Assignor hereby irrevocably sells and assigns to                                     Aggregate Amount of     Amount of           Percentage  the  Assignee,  and the  Assignee  hereby  irrevocably purchases  and  assumes from  the Assignor,                                 Loans/Commitments   Loans/Commitments      Assigned of  subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement,                     Tranche of Loan     for all Lenders       Assigned      Loans/Commitments3  as  of  the  Effective  Date  inserted  by  the  Administrative  Agent  as  contemplated  below,  (i)  the                                                                                                                   $_______________  _____________       $_______________   ________________%  interest in and to all of  other  documents  or  instruments  delivered  pursuant  thereto  that  represents  the  amount  and                                                                                       ons                                                 [Remainder of page intentionally left blank]  under the facility identified below and (ii) to the extent permitted to be assigned under applicable                                                 law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a  Lender) against any Person, whether known or unknown, arising under or in connection with the  Credit Agreement, any  other documents  or instruments  delivered pursuant  thereto or the loan  transactions  governed  thereby  or  in  any  way  based  on  or  related  to  any  of  the  foregoing,  including,  but  not  limited  to,  contract  claims,  tort  claims,  malpractice  claims,  statutory  claims  and all other claims at law or in equity related to the rights and obligations sold and assigned  pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the  Assignee  pursuant  to  clauses  (i)  and  (ii)  above  being  referred  to  herein  collectively  as  the   Assigned Interest as expressly provided in this Assignment, without representation or warranty by the Assignor.         1.     Assignor:               ______________________________         2.     Assignee:               ______________________________ is an Eligible                                       Assignee  [and  a[n]  [Lender/Affiliate  of  a                                       Lender/Related Fund]].1                       3.     Borrower:                                        2          4.     Administrative Agent:   BNP  Paribas,  as  Administrative  Agent  (the                                        Administrative  Agent )  under  the  Credit                                       Agreement.                                                     1     Select as applicable.                                                                                                                                  2     Select as applicable.                                                                                3     Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.                                                                                                                77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                               Effective  Date:  _____________  ___,  20___  [TO  BE  INSERTED  BY  ADMINISTRATIVE                           Title:  AGENT  AND  WHICH  SHALL  BE  THE  EFFECTIVE  DATE  OF  RECORDATION  OF                                      TRANSFER IN THE REGISTER THEREFOR.]                                                                        By:                                                                                                                                            Name:               The terms set forth in this Assignment are hereby agreed to:                                     Title:]7                                           ASSIGNOR:                                                                                    [NAME OF ASSIGNOR]                                                                                    By:                                                                Name:                                             Title:                                                                                    ASSIGNEE:                                                                                    [NAME OF ASSIGNEE]                                                                                    By:                                                                Name:                                             Title:    Consented to and Accepted:  [BNP Paribas, as Administrative Agent [and][,] [L/C Issuer] [and] [Swing Line Lender]    By:                                 Name:     Title:]4    [Goldman Sachs Bank USA, as L/C Issuer]    By:                                 Name:     Title:]5      [Consented to:                          6    By:                                 Name:                                                    4     If required pursuant to Section 9.04(b) of the Credit Agreement.  5       If required pursuant to Section 9.04(b) of the Credit Agreement.                                                                                       6     Include if assignment is executed in connection with the Revolving Commitment and after the appointment  of the Subsidiary Revolver Borrower.                                                                       7     If required pursuant to Section 9.04(b) of the Credit Agreement.                                                                                                                77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                                                                                        Annex 1                           under the Credit Agreement and (ii) it will perform in accordance with their terms all of the                                                         to Assignment and Acceptance                        obligations which by the terms of the Credit Agreement are required to be performed by it as a                                                                                                             Lender;  and  (c)  appoints  and  authorizes the  Administrative  Agent and  the Collateral  Agent  to                                                                                                             take such action as agent on its behalf and to exercise such powers under the Credit Agreement                                                                                                             as are delegated to the Administrative Agent and the Collateral Agent, respectively, by the terms                                CREDIT AGREEMENT                                                             thereof, together with such powers as are reasonably incidental thereto.                STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT                                                              2.    Payments.  From and after the Effective Date, Administrative Agent shall                          AND ACCEPTANCE AGREEMENT                                                           make all payments in respect of the Assigned Interest (including payments of principal, interest,                                                                                                             fees and other amounts) to the Assignor for amounts which have accrued to but excluding the               1.    Representations and Warranties.                                                         Effective Date and to the Assignee for amounts which have accrued from and after the Effective                                                                                                             Date.               1.1   Assignor.  The Assignor (a) represents and warrants that (i) it is the legal  and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any                     3.    General Provisions.  This Assignment shall be binding upon, and inure to  lien, encumbrance or other adverse claim, (iii) its Commitment and the outstanding balances of             the benefit of, the parties hereto and their respective successors and assigns.  This Assignment  its Loans, without giving effect to assignments thereof that have not become effective, are as set         may be executed in any number of counterparts, which together shall constitute one instrument.   forth  in  this  Assignment  and  (iv)  it  has  full  power  and  authority,  and  has  taken  all  action Delivery of an executed counterpart of a signature page of this Assignment by telecopy or other  necessary,  to  execute  and  deliver  this  Assignment  and  to  consummate  the  transactions            electronic transmission shall be effective as delivery of a manually executed counterpart of this  contemplated hereby; and (b) except as set forth in clause (a) above, makes no representation or           Assignment.  THIS  AGREEMENT  AND  THE  RIGHTS  AND  OBLIGATIONS  OF  THE  warranty  and  assumes  no  responsibility  with  respect  to  (i)  any  statements,  warranties  or       PARTIES  HEREUNDER  SHALL  BE  CONSTRUED  IN  ACCORDANCE  WITH  AND  representations made in or in connection with the Credit Agreement or any of the other Loan                GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.  Documents (as defined below), (ii) the execution, legality, validity, enforceability, genuineness,  sufficiency or value of the Credit Agreement, any other Loan Document or any other instrument                                    [Remainder of page intentionally left blank]  or  document  delivered  pursuant  thereto,  other  than  this  Assignment  (herein,  collectively,  the                  Loan Documents the performance or observance by the Borrower or any of its Subsidiaries or any other Person of  any  of  their  respective  obligations  under  any  Loan  Document  or  any  other  instrument  or  document furnished pursuant thereto.                1.2   Assignee.  The Assignee (a) represents and warrants that (i) it has  full  power and authority, and has taken all action necessary, to execute and deliver this Assignment  and  to  consummate the  transactions  contemplated  hereby  and  to  become  a  Lender  under the  Credit  Agreement,  (ii)  it  meets  all  requirements  of  an  Eligible  Assignee  under  the  Credit  Agreement, (iii) it has received a copy of the Credit Agreement, together with copies of the most  recent financial statements referred to in Section 3.05(a) thereof or delivered pursuant to Section  4.10  of  Annex  1  thereof,  as  applicable,  and  such  other  documents  and  information  as  it  has  deemed appropriate to make its own credit analysis and decision to enter into this Assignment  and to purchase the Assigned Interest and (iv) attached to this Assignment is any documentation  required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and  executed by the Assignee, including to the extent required pursuant to Section 2.20(e)(ii) of the  Credit Agreement, completed originals of IRS Forms W-8BEN/W-8BEN-E, W-8ECI, W-8IMY  or W-9, as may be applicable, together with any required attachments, if required to establish  that  such  Assignee  is  exempt  from  United  States  backup  withholding  Taxes  (unless  such  Assignee is not subject to United States backup withholding Taxes); (b) agrees that (i) it will,  independently  and  without  reliance  upon  the  Administrative  Agent,  the  Collateral  Agent,  the  Assignor or any other Lender, and based on such documents and information as it shall deem  appropriate at the time, continue to make its own credit decisions in taking or not taking action                                                                                                                 77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                                                                                                                                                                      Exhibit C-1                               (C)   Class of Borrowing:10                                                                                    to the Credit Agreement                                                                                                                   (D)   Type of Borrowing:11                                       FORM OF REVOLVING CREDIT BORROWING REQUEST                                                                                                                   (E)   Interest Period and the last day                                                                                                                         thereof12:                                    BNP Paribas                                                                                                      (F)   Funds are requested to be disbursed to the Borrower with:  787 7th Avenue   New York, NY 10019                                                                                                     Dollars                                                                                                                         Correspondent Bank (or Account with Institution):        Attn: Charles Romano                                                                                                   Swift/CHIPS:                                                    Tel. 212 841 2968                                                                                                      Account No.:                                                    Email: charles.romano@us.bnpparibas.com                                                                                Beneficiary:                                                                                                                                                                           Required reference (if applicable):                      Attn: Yuqiao Lin                                                                                             Tel. 212-340-5374                                                                                                  Email: yuqiao.lin@us.bnpparibas.com                                                                                                                         The Borrower hereby represents and warrants to the Administrative Agent and the                                                                                                             Lenders that, as of the date of the Borrowing, the applicable conditions to lending specified in                                                                                                             Section 4.03 of the Credit Agreement have been satisfied.                                                                       [Date]                                                                                                                                    [Remainder of page intentionally left blank]  Ladies and Gentlemen:     The undersigned, [BidFair MergeRight Inc.]8                     9 a [Delaware][New                      Borrower  , refers to that certain Credit Agreement, dated as of October  2,  2019  (as  amended,  modified,  supplemented  or  restated  from  time  to  time Credit  Agreement                                                              Lenders BNP  Paribas,  as  administrative  agent  (including  any  successor  thereto,  the Administrative  Agent )  for  the  Lenders  and  Deutsche  Bank  Trust  Company  Americas,  as  collateral  agent  (including any successor thereto, the Collateral Agent . Capitalized terms used herein and not  otherwise  defined  herein  shall  have  the  meanings  assigned  to  such  terms  in  the  Credit  Agreement.  The  Borrower  hereby  gives  you  notice  pursuant  to  Section 2.03  of  the  Credit  Agreement that it requests a Borrowing under the Credit Agreement, and in connection therewith  sets forth below the terms on which such Borrowing is requested to be made:          (A)    Date of Borrowing               (which is a Business Day):                          (B)    Principal Amount of Borrowing:                             Dollars:          _______________________                                                                                                                                                                                                                                                                          10    Specify Borrowing of Initial Revolving Credit Loans, Incremental Revolving Credit Loans, Revolving                                                                                                                   Credit Loans under any Extended Revolving Credit Commitment or Refinancing Revolving Loans.                                                                                                             11    If applicable, specify Eurodollar Borrowing or ABR Borrowing.   8     Only if Notice of Borrowing is executed before the Acquisition.                                                                                                              12  9     Select as applicable.                                                                                      and Section 2.02 of the Credit Agreement.                                                                                                                77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                           IN WITNESS WHEREOF, the undersigned has caused this Borrowing Request to                                                                                             Exhibit C-2  be duly executed and delivered by its officer as of the date first above written.                                                                                      to the Credit Agreement                                                                                       [[BidFair MergeRight Inc.] 13                                                     FORM OF SWING LINE BORROWING REQUEST                                        14                                                                                                             BNP Paribas                                                                                                             787 7th Avenue                                           By:_______________________________                                 New York, NY 10019                                             Name:                                                                                                        Title:                                                          Attn: Charles Romano                                                                                                             Tel. 212 841 2968                                                                                                             Email: charles.romano@us.bnpparibas.com                                                                                                                                                                                                                          Attn: Yuqiao Lin                                                                                                             Tel. 212-340-5374                                                                                                             Email: yuqiao.lin@us.bnpparibas.com                                                                                                                                                                                                                                                                                                                                                                                                           [Date]                                                                                                                                                                                                                          Ladies and Gentlemen:                                                                                                                                                                                                                                      The  undersigned,  [BidFair  MergeRight  Inc.]15                 16 a                                                                                                                                                Borrower  , refers to that certain Credit Agreement,                                                                                                             dated as of October 2, 2019 (as amended, modified, supplemented or restated from time to time,                                                                                                                 Credit Agreement                                       to time party thereto (the                                                                                                              Lenders                                                                                                             Administrative  Agent )  for  the  Lenders  and  Deutsche  Bank  Trust  Company  Americas,  as                                                                                                             collateral agent (including any successor thereto, the Collateral Agent . Capitalized terms used                                                                                                             herein and not otherwise defined herein shall have the meanings assigned to such terms in the                                                                                                             Credit Agreement. The Borrower hereby gives you notice pursuant to Section 2.27 of the Credit                                                                                                             Agreement that it requests a Borrowing under the Credit Agreement, and in connection therewith                                                                                                             sets forth below the terms on which such Borrowing is requested to be made:                                                                                                                     (A)  Date of Borrowing                                                                                                                         (which is a Business Day):                                                                                                                                     (B)   Principal Amount of Borrowing:                                                                                                                           Dollars:                       ________________________                                                                                                                    (C)   Type of Borrowing:             ABR Borrowing                                                                                                                                                                                                                                                                           15    Only if Notice of Borrowing is executed before the Acquisition.   13    Only if Notice of Borrowing is executed before the Acquisition.                                                                                                              16    Select as applicable.  14       Select as applicable.                                                                                                                                                                                                77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                     (E)    Funds are requested to be disbursed to the Borrower                                                      IN WITNESS WHEREOF, the undersigned has caused this Borrowing Request to                                                                                                             be duly executed and delivered by its officer as of the date first above written.               Dollars                                                                                                                                              Correspondent Bank (or Account with Institution):                  [[BidFair MergeRight Inc.] 17                                                                                        Swift/CHIPS:                                                                                                                                         ]18               Account No.:                                                                                                                                         Beneficiary:                                                                                                                                         Required reference (if applicable):                                By:_______________________________                                                                                                                                                        Name:                                                                                                                                                        Title:                                                                                                                            The Borrower hereby represents and warrants to the Administrative Agent and the  Lenders that, as of the date of the Borrowing, the applicable conditions to lending specified in              Section 4.03 of the Credit Agreement have been satisfied.                         [Remainder of page intentionally left blank]                                                                                                                                                                                                                                                                            17    Only if Notice of Borrowing is executed before the Acquisition.                                                                                                              18    Select as applicable.                                                                                                                                                                                                                             77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                                                                                      Exhibit C-3                               (D)   Type of Borrowing:22                                                                                     to the Credit Agreement                                                                                                                   (E)   Interest Period and the last day                       FORM OF TERM BORROWING REQUEST                                                                    thereof23:                                    BNP Paribas                                                                                                      (F)   Funds are requested to be disbursed to the Borrower       787 7th Avenue   New York, NY 10019                                                                                                     Dollars                                                                                                                         Correspondent Bank (or Account with Institution):        Attn: Charles Romano                                                                                                   Swift/CHIPS:                                                    Tel. 212 841 2968                                                                                                      Account No.:                                                    Email: charles.romano@us.bnpparibas.com                                                                                Beneficiary:                                                                                                                                                                           Required reference (if applicable):                      Attn: Yuqiao Lin                                                                                                   Tel. 212-340-5374                                                                                            Email: yuqiao.lin@us.bnpparibas.com                                                                                                                         The Borrower hereby represents and warrants to the Administrative Agent and the                                                                       [Date]                                Lenders that, as of the date of the Borrowing, the applicable conditions to lending specified in                                                                                                             Section 4.03 of the Credit Agreement have been satisfied.  Ladies and Gentlemen:                                                                                                                                   [Remainder of page intentionally left blank]               The  undersigned,  [BidFair  MergeRight  Inc.] 19     20  a  Delaware                 Borrower  ,  refers  to  that  certain  Credit  Agreement,  dated  as  of  October  2,  2019  (as  amended,  modified,  supplemented  or  restated  from  time  to  time Credit  Agreement                                                              Lenders BNP  Paribas,  as  administrative  agent  (including  any  successor  thereto,  the Administrative  Agent )  for  the  Lenders  and  Deutsche  Bank  Trust  Company  Americas,  as  collateral  agent  (including any successor thereto, the Collateral Agent . Capitalized terms used herein and not  otherwise  defined  herein  shall  have  the  meanings  assigned  to  such  terms  in  the  Credit  Agreement.  The  Borrower  hereby  gives  you  notice  pursuant  to  Section 2.03  of  the  Credit  Agreement that it requests a Borrowing under the Credit Agreement, and in connection therewith  sets forth below the terms on which such Borrowing is requested to be made:          (A)   Date of Borrowing               (which is a Business Day):                          (B)    Principal Amount of Borrowing:                             Dollars:          ________________________         (C)    Class of Borrowing:21                                                                           19    Only if Notice of Borrowing is executed before the Acquisition.                                                                                                                                                                20    Select as applicable.                                                                                                             22    If applicable, specify Eurodollar Borrowing or ABR Borrowing.   21    Specify Borrowing of Initial Term Loans, Incremental Term Loans, Extended Term Loans or Refinancing  23        Term Loans.                                                                                                and Section 2.02 of the Credit Agreement.                                                                                                                                                                                                                             77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                           IN WITNESS WHEREOF, the undersigned has caused this Borrowing Request to                                                                                               Exhibit D  be duly executed and delivered by its officer as of the date first above written.                                                                                      to the Credit Agreement                                                                                    [BidFair MergeRight Inc.]24      25                                                    FORM OF INTERCREDITOR AGREEMENT                                                                                                                                                                                                                                         By:_______________________________                                             Name:                                                           See attached.                                            Title:                                                            24    If Notice of Borrowing is executed before the Acquisition.   25    If Notice of Borrowing is executed after the Acquisition.                                                                                                                                                                                                                              77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                Execution Version                                                                                                                                        Article I Definitions ........................................................................................................................ 1                                                                                                              SECTION 1.01   Construction; Certain Defined Terms ............................................................ 1                  EQUAL PRIORITY INTERCREDITOR AGREEMENT                                                    Article II Priorities and Agreements with Respect to Shared Collateral ...................................... 10                                                                                                              SECTION 2.01   Priority of Claims ......................................................................................... 10                                                                                                              SECTION 2.02   Actions with Respect to Shared Collateral; Prohibition on Contesting                                       Among                                                                                  Liens ............................................................................................................. 12                                                                                                              SECTION 2.03   No Interference; Payment Over ................................................................... 13                                                                                                              SECTION 2.04   Automatic Release of Liens; Amendments to Security Documents ............ 14                  DEUTSCHE BANK TRUST COMPANY AMERICAS,                                                                                                               SECTION 2.05   Certain Agreements with Respect to Insolvency or Liquidation                 as Collateral Agent for the Credit Agreement Secured Parties,                                                Proceedings .................................................................................................. 15                                                                                                              SECTION 2.06   Reinstatement ............................................................................................... 16                                                                                                              SECTION 2.07   Insurance ...................................................................................................... 16                                  BNP PARIBAS,                                                                SECTION 2.08   Refinancings ................................................................................................ 16                                                                                                              SECTION 2.09   Possessory Collateral Agent as Gratuitous Bailee for Perfection ................ 16             Authorized Representative for the Credit Agreement Secured Parties,                                                                                                               SECTION 2.10   Amendments to Security Documents........................................................... 17                                                                                                            Article III Existence and Amounts of Liens and Obligations ....................................................... 18                  DEUTSCHE BANK TRUST COMPANY AMERICAS,                                                       SECTION 3.01   Determinations with Respect to Amounts of Liens and Obligations ........... 18                                                                                                            Article IV The Controlling Collateral Agent; Designated Common Collateral Agent ................ 18                as Collateral Agent for the Initial Additional Secured Parties,                                                                                                               SECTION 4.01   Authority ...................................................................................................... 18                                                                                                              SECTION 4.02   Non-Reliance on Controlling Collateral Agent and Other Secured                   DEUTSCHE BANK TRUST COMPANY AMERICAS,                                                                      Parties ........................................................................................................... 19                                                                                                            Article V Investor Obligations ...................................................................................................... 21            as Authorized Representative for the Initial Additional Secured Parties,                                                                                                               SECTION 5.01   Subordination of Investor Obligations ......................................................... 21                                                                                                              SECTION 5.02   Restriction on Payment ................................................................................ 21                                         and                                                                   SECTION 5.03   No Acquisition of Investor Obligations ....................................................... 21                                                                                                              SECTION 5.04   Collateral; Guarantees .................................................................................. 21           each additional Authorized Representative from time to time party hereto                                                                                                                SECTION 5.05   Payment Obligations Continue .................................................................... 21                                        and                                                                   SECTION 5.06   Turnover in Respect of Investor Obligations ............................................... 21                                                                                                              SECTION 5.07   Investor Obligations: Exceptions ................................................................. 22                           the Original Investor named herein                                                                                                               SECTION 5.08   Changes to Parties ........................................................................................ 22                                                                                                            Article VI Miscellaneous .............................................................................................................. 23                              Dated as of October 2, 2019                                                     SECTION 6.01   Notices ......................................................................................................... 23                                                                                                              SECTION 6.02   Waivers; Amendment; Joinder Agreements ................................................ 24                                                                                                                SECTION 6.03   Parties in Interest.......................................................................................... 25                                                                                                              SECTION 6.04   Effectiveness, Survival of Agreement, Severability .................................... 25                                                                                                                                                     i  77660844_6                                                                                                 77660844_6 





 






                                                                                                                SECTION 6.05   Counterparts ................................................................................................. 25 EQUAL  PRIORITY  INTERCREDITOR  AGREEMENT  (as  amended  or  supplemented    SECTION 6.06   Severability .................................................................................................. 25 Agreement                             DEUTSCHE BANK                                                                                                             TRUST COMPANY AMERICAS, as collateral agent for the Credit Agreement Secured Parties    SECTION 6.07   Governing Law; Jurisdiction; Consent to Service of Process ...................... 25      (as defined below) (in such capa                                           Credit    SECTION 6.08   Submission to Jurisdiction Waivers ............................................................. 25 Agreement  Collateral  Agent                                                                                                            Credit  Agreement  Secured  Parties  (in  such  capacity  and  together  with  its  successors  in  such    SECTION 6.09   WAIVER OF JURY TRIAL ........................................................................ 26                                                                                                            capacity,     Credit  Agreement  Administrative  Agent DEUTSCHE  BANK  TRUST    SECTION 6.10   Headings ...................................................................................................... 26 COMPANY  AMERICAS,  as  the  Authorized  Representative  for  the  Initial  Additional  Secured    SECTION 6.11   Conflicts ....................................................................................................... 26                                        Initial Additional                                                                                                             Authorized  Representative DEUTSCHE  BANK  TRUST  COMPANY  AMERICAS,  as    SECTION 6.12   Provisions Solely To Define Relative Rights .............................................. 26                                                                                                            collateral agent for the Initial Additional Secured Parties (in such capacity and together with its    SECTION 6.13   Additional Senior Debt ................................................................................ 27           Initial Additional Collateral Agent         Authorized    SECTION 6.14   Integration .................................................................................................... 28 Representative from time to time party hereto for the Additional Secured Parties of the Series with                                                                                                             respect to which it is acting in such capacity (in such capacity and together with its successors in    SECTION 6.15   Attorney in Fact. .......................................................................................... 28 Additional  Authorized  Representative                                                                                                            hereinafter defined).                                       ANNEXES                                                                       In consideration of the mutual agreements herein contained and other good and valuable                                                                                                             consideration,  the  receipt  and  sufficiency  of  which  are  hereby  acknowledged,  the  Credit  Annex I Consent of Grantor ............................................................................................................ 1 Agreement Collateral Agent and the Credit Agreement Administrative Agent (for themselves and  Annex II Form of Joinder ............................................................................................................... 1 on  behalf  of  the  Credit  Agreement  Secured  Parties),  the  Initial  Additional  Authorized                                                                                                             Representative  (for  itself  and  on  behalf  of  the  Initial  Additional  Secured  Parties)  and  each  Annex III Form of Supplement ....................................................................................................... 1 Additional Authorized Representative (for itself and on behalf of the Additional Secured Parties                                                                                                             of the applicable Series) agree as follows:                                                                                                                                                 ARTICLE I                                                                                                                                                                                                                                                                                                   DEFINITIONS                                                                                                                    SECTION 1.01      Construction; Certain Defined Terms.  (a) The definitions of terms                                                                                                             herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the                                                                                                             context may require, any pronoun shall include the corresponding masculine, feminine and neuter                                                                                                                                                                                followed by the                                                                                                                                                                   (i) any definition of or reference                                                                                                             to any agreement, instrument, other document, statute or regulation herein shall be construed as                                                                                                             referring to such agreement, instrument, other document, statute or regulation as from time to time                                                                                                             amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be                                                                                                              subsidiaries of such Person unless express reference is made to such subsidiaries, (iii) the words                                                                                                              Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to                                                                                                             Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of                                                                                                             this Agreement, (v)                                                                                                             shall be construed to have the same meaning and effect and to refer to any and all tangible and                                                                                                             intangible assets and properties, including cash, securities, accounts and contract rights and (vi) the                                                                                                                                                                             ii  77660844_6                                                                                                 77660844_6 





 






                                                                                                                    (b)    It  is  the  intention  of  the  Secured  Parties  of  each  Series  that  the  holders  of          Additional Collateral Agent   (a) for so long as the Initial Additional Obligations  Obligations of such Series (and not the Secured Parties of any other Series) bear the risk of (i) any      are  the  only  Series  of  Additional  Obligations,  the  Initial  Additional  Collateral  Agent  and  determination by a court of competent jurisdiction that (A) any of the Obligations of such Series          (b) thereafter, the Collateral Agent for the Series of Additional Obligations that constitutes the  are unenforceable under applicable law or are subordinated to any other obligations (other than            largest outstanding principal amount of any then outstanding Series of Additional Obligations with  another Series of Obligations), (B) any of the Obligations of such Series do not have an enforceable       respect to any Shared Collateral.  security interest in any of the Collateral securing any other Series of Obligations and/or (C) any  intervening security interest exists securing any other obligations (other than another Series of                 Additional  Obligations Obligations) on a basis ranking prior to the security interest of such Series of Obligations but junior    (including  the  Initial  Additional  Secured  Parties)  pursuant  to  the  terms  of  any  Additional  to the security interest of any other Series of Obligations and (ii) the existence of any Collateral       Agreement (including the Initial Additional Agreement), including, without limitation, all amounts  for any other Series of Obligations that is not Shared Collateral (any such condition referred to in       in respect of any principal, premium, interest (including any interest accruing subsequent to the  the foregoing clause (i) or (ii) with respect t                Impairment                                  commencement  of  a  Bankruptcy  Case  at  the  rate  provided  for  in  the  respective  Additional  Series).  In the event of any Impairment with respect to any Series of Obligations, the results of         Agreement, whether or not such interest is an allowed claim under any such proceeding or under  such Impairment shall be borne solely by the holders of such Series of Obligations, and the rights         applicable  state,  federal  or  foreign  law),  penalties,  fees,  expenses,  indemnifications,  of the holders of such Series of Obligations (including the right to receive distributions in respect      reimbursements, damages and other liabilities, and guarantees of the foregoing amounts.  of such Series of Obligations pursuant to Section 2.01) set forth herein shall be modified to the  extent necessary so that the effects of such Impairment are borne solely by the holders of the Series             Additional  Secured Parties of such Obligations subject to such Impairment.  Additionally, in the event the Obligations of any         Additional Authorized Representative and shall include the Initial Additional Secured Parties.  Series  are  modified  pursuant  to  applicable  law  (including  pursuant  to  Section  1129  of  the  Bankruptcy Code), any reference to such Obligations or the Secured Credit Documents governing                     Additional Security Documents means the Initial Additional Security Documents and  such Obligations shall refer to such Obligations or such documents as so modified.                         any collateral agreement, security agreement or any other document now existing or entered into                                                                                                             after the date hereof that create Liens on any assets or properties of any Grantor to secure the        (c)    Capitalized terms used and not otherwise defined herein shall have the meanings               Additional Obligations.                                                                                 As                                  Additional Senior Class Debt                                Section 6.13.  used in this Agreement, the following terms have the meanings specified below:                                                                                                                    Additional Senior Class Debt Collateral Agent           igned to such term in         Acceleration  Event                                                                                 Section 6.13.  Representative  in  relation  thereto  has  exercised  any  acceleration  right  to  demand  (or  any                                                                                                                    Additional Senior Class Debt Parties                               Section  acceleration provision being automatically invoked which requires) repayment of any Obligations                                                                                                             6.13.  outstanding thereunder, in each case under and in accordance with the terms of the related Secured  Credit  Documents  for  such  Series  following  the  occurrence  of  an  Event  of  Default  which  is           Additional Senior Class Debt Representative continuing  (in  each  case  other  than  placing  amounts  on  demand  or  cancelling  undrawn            Section 6.13.  commitments, but including making a demand for repayment of amounts placed on demand).                                                                                                                    Agreement        Additional Agreement                          al Additional Obligations or any                      Agreement.  Series of Additional Senior Class Debt, the notes, indentures, credit agreements, loan agreements,  security documents and other operative agreements or instruments evidencing or governing such                     Applicable Authorized Representative   (a) until the earlier of (i) the Discharge of  indebtedness and liens securing such indebtedness, including the Initial Additional Agreement and          the  Credit  Agreement  Obligations  and  (ii)  the  Non-Controlling  Authorized  Representative  the Additional Security  Documents and each other agreement entered into for the purpose of                Enforcement Date, the Credit Agreement Administrative Agent, and (b) from and after the earlier  securing the Initial Additional Obligations or any Series of Additional Senior Class Debt; provided        of (i) the Discharge of the Credit Agreement Obligations and (ii) the Non-Controlling Authorized  that, in each case, the Indebtedness thereunder (other than the Initial Additional Obligations) has        Representative Enforcement Date, the Major Non-Controlling Authorized Representative.  been designated as a Series of Additional Senior Class Debt pursuant to Section 6.13 hereto.                                                                                                                    Authorized Representative    (a) in the case of any Credit Agreement Obligations        Additional  Authorized  Representative                                                               or the Credit Agreement Secured Parties, the Credit Agreement Administrative Agent, (b) in the  introductory paragraph to this Agreement.                                                                  case  of  the  Initial  Additional  Obligations  or  the  Initial  Additional  Secured  Parties,  the  Initial                                                                                                             Additional Authorized Representative, and (c) in the case of any Series of Additional Obligations                                           2                                                                                                         3  77660844_6                                                                                                 77660844_6 





 






                                                                                                              or Additional Secured Parties that become subject to this Agreement after the date hereof, the                    Credit Agreement Administrative Agent Authorized Representative named for such Series in the applicable Joinder Agreement.                       introductory paragraph of this Agreement.          Bankruptcy Case          ning assigned to such term in Section 2.05(b).                                    Credit  Agreement  Collateral  Agent                                                                                                            introductory paragraph of this Agreement.         Bankruptcy Code                                                                                                                                                                  Credit  Agreement  Obligations        Bankruptcy Law                            any other liquidation, conservatorship,                   Agreement.  bankruptcy, assignment for the benefit of creditors, moratorium, administration, rearrangement,  judicial management, receivership, insolvency, reorganization (by way of voluntary arrangement,                   Credit Agreement Secured Parties scheme  of  arrangement  or  otherwise),  or  similar  federal,  state  or  foreign  debtor  relief  laws  Agreement.  (including  under  any  applicable  corporate  statute)  of  the  United  States  or  other  applicable  jurisdictions from time to time in effect.                                                                        Credit Agreement Security Agreement                                                                                                            as of October 2, 2019, among the Grantors party thereto and the Credit Agreement Collateral         Capital  Stock                                 the  Credit  Agreement  (or  any                     Agent, as amended, restated, supplemented or otherwise modified from time to time.                                                                                                                     Credit  Agreement  Security  Documents                                                                                                            Agreement, the other Security Documents (as defined in the Credit Agreement) and each other         Cash Collateralized Obligations              g assigned to such term in Section                     agreement  entered  into  in  favor  of  the  Credit  Agreement  Collateral  Agent  for  the  purpose  of  2.01(d).                                                                                                   securing any Credit Agreement Obligations.          Collateral                                                                                                 DIP Financing                                  Section 2.05(b).  Security Document to secure any of the Obligations.                                                                                                                    DIP Financing Liens                                  Section 2.05(b).         Collateral Agent     (a) in the case of any Credit Agreement Obligations, the Credit  Agreement  Collateral  Agent,  (b)  in  the  case  of  the  Initial  Additional  Obligations,  the  Initial       DIP Lenders                                   Section 2.05(b).  Additional Collateral Agent, and (c) in the case of any other Series of Additional Obligations that  become subject to this Agreement after the date hereof, the Additional Senior Class Debt Collateral               Discharge                ct to any Shared Collateral and any Series of Obligations,  Agent for such Series named in the applicable Joinder Agreement.                                           the date on which such Series of Obligations is no longer secured by such Shared Collateral.  The                                                                                                                  Discharged                                  Controlling Collateral Agent   (a) until the earlier of (i) the Discharge of the Credit  Agreement  Obligations  and  (ii)  the  Non-Controlling  Authorized  Representative  Enforcement                  Discharge  of  Secured  Obligations             ge  of  the  Credit  Agreement  Date, the Credit Agreement Collateral Agent and (b) from and after the earlier of (i) the Discharge        Obligations,  the  Discharge  of  the  Initial  Additional  Obligations  and  the  Discharge  of  any  of  the  Credit  Agreement  Obligations  and  (ii)  the  Non-Controlling  Authorized  Representative       Additional Obligations.  Enforcement Date, the Additional Collateral Agent.                                                                                                                    Discharge  of  the  Credit  Agreement  Obligations        Controlling Secured Parties   (a) at any time when the Credit Agreement Collateral                  Collateral,  the  Discharge  of  all  Credit  Agreement  Obligations  with  respect  to  such  Shared  Agent is the Controlling Collateral Agent, the Credit Agreement Secured Parties and (b) at any             Collateral; provided that the Discharge of the Credit Agreement Obligations shall not be deemed  other  time,  the  Series  of  Secured  Parties  whose  Authorized  Representative  is  the  Applicable    to have occurred in connection with a Refinancing of such Credit Agreement Obligations with  Authorized Representative for such Shared Collateral.                                                      Additional Obligations secured by such Shared Collateral under an Additional Agreement which                                                                                                             has been designated in writing by the Credit Agreement Administrative Agent to the Additional         Credit Agreement among BidFair MergeRight Inc., a Delaware corporation (to be m                                             purposes of this Agreement.  a Delaware corporation, on the Closing Date) (together with its successors and assigns, until the  satisfaction in full of all the Obligations in accordance with the terms of this Agreement, the                   Equity Release Proceeds                      Section 2.04(a).    Borrower                 her parties party thereto from time to time, the Credit Agreement  Administrative Agent and the Credit Agreement Collateral Agent.                                                   Event of Default                               arly defined term) as defined in                                                                                                             any Secured Credit Document.                                           4                                                                                                         5  77660844_6                                                                                                 77660844_6 





 






                                                                                                                     Grantors                                                                                                  (b)   any liquidation, dissolution, marshalling of assets or liabilities or other winding up  that  has  granted a  security  interest  pursuant  to  any  Secured  Credit  Documents to  secure any     of or relating to any Grantor, in each case whether or not voluntary and whether or not involving  Obligations.                                                                                               bankruptcy or insolvency and whether or not in a court supervised proceeding; or          Guarantee                                                                                                 (c)   any  other  proceeding  of  any  type  or  nature  in  which  substantially  all  claims  of                                                                                                             creditors of any Grantor are determined and any payment or distribution is or may be made on                                                                                                             account of such claims.          Guarantee Release Proceeds                      Section 2.04(a).                                           Intervening Creditor s the meaning assigned to such term in Section 2.01(a).          Guarantors                                                                                                 Investor Borrower that has provided a Guarantee in respect of the Obligations pursuant to any Secured                                      in accordance with Section 6.01 hereof, provided that it has not ceased  Credit Documents.                                                                                          to be an Investor pursuant to Section 6.01.          Impairment                                   Section 1.01(b).                                              Investor  Documents                                                                                                            accommodation made by an Investor to the Parent Guarantor or other Indebtedness incurred by         Initial Additional Agreement                                                                        Parent  Guarantor  to  an  Investor; provided  that  such  loan,  financial  accommodation  or  other  among, inter alia, the Borrower, the Initial Additional Authorized Representative, and the Initial         Indebtedness has been designated by the Original Investor as Subordinated Shareholder Funding  Additional Collateral Agent.                                                                               to each Authorized Representative in accordance with each Secured Credit Document.          Initial Additional Authorized Representative                                                               Investor Joinder Agreement the introductory paragraph of this Agreement.                                                              Investor, substantially in the form of Annex III hereto or such other form as shall be approved by                                                                                                             the Applicable Authorized Representative.         Initial  Additional  Collateral  Agent introductory paragraph of this Agreement.                                                                         Investor Obligations                                                                                                            and duties of, Parent Guarantor owing to the  Investors arising under the Investor Documents         Initial Additional Obligations  the Additional Obligations pursuant to the Initial                  whether direct or indirect (including those acquired by assumption), absolute or contingent, due or  Additional Agreement.                                                                                      to become due, now existing or hereafter arising and including interest, fees and other amounts, if                                                                                                             any, that accrue after the commencement by or against any Borrower or any other Grantor of any         Initial Additional Secured Parties                                                                  proceeding under any Bankruptcy Laws naming such Person as the debtor in such proceeding,  any Initial Additional Obligations and the Initial Additional Authorized Representative.                   regardless of whether such interest, fees and other amounts, if any, are allowed claims in such                                                                                                             proceeding.          Initial Additional Security Agreement dated as of October 2, 2019 among the Grantors party thereto and the Initial Additional Collateral                Investor  Obligations  Acquisition means,  in  respect  of  a  person  and  to  any  Investor  Agent, as amended, restated, supplemented or otherwise modified from time to time.                         Obligations, a  transaction  where  that  person  (a)  purchases  by way  of  assignment  or  transfer,                                                                                                             (b) enters  into  any  sub-participation  in  respect  of,  or  (c)  enters  into  any  other  agreement  or         Initial Additional Security Documents                                                                                                            arrangement having an economic effect substantially similar to a sub-participation in respect of,  the  other  Security  Documents  (as  defined in  the  Initial Additional  Agreement)  and  each  other                                                                                                             the rights and benefits in respect of those Investor Obligations.  agreement  entered  into  in  favor  of  the  Initial  Additional  Collateral  Agent  for  the  purpose  of  securing any Initial Agreement Obligations.                                                                       Joinder Agreement                                       in the form of Annex                                                                                                             II hereto (with such changes as may be reasonably approved by such Authorized Representatives,         Insolvency or Liquidation Proceeding                                                                                                                Collateral Agents, Additional Senior Class Debt Representative and Additional Senior Class Debt        (a)    any case commenced by or against any Grantor under any Bankruptcy Law, any                    Collateral  Agent)  required  to  be  delivered  by  an  Authorized  Representative  and  the  related  other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets       Additional Senior Class Debt  Collateral  Agent  to each Collateral Agent and  each  Authorized  or liabilities of any Grantor, any receivership or assignment for the benefit of creditors relating to     Representative  pursuant  to  Section  6.13  hereof  in  order  to  establish  an  additional  Series  of  any Grantor or any similar case or proceeding relative to any Grantor or its creditors, as such, in        Additional Obligations and add Additional Secured Parties hereunder.  each case whether or not voluntary;                                           6                                                                                                         7  77660844_6                                                                                                 77660844_6 





 






                                                                                                                     Lien                                                                                                       Non-US Grantor                                     assignment, lien (statutory or other) or similar encumbrance (including any agreement to give any  of the foregoing, any conditional sale or other title retention agreement or any lease in the nature              Non-US Security Interest    any security interests granted in favor of the Secured  thereof).                                                                                                  Parties with respect to Non-US Collateral.          Major Non-Controlling Authorized Representative                                                            Obligations                  (a)  the  Credit  Agreement  Obligations  and  (b)  each  Representative of the Series of Additional Obligations that at such time constitutes the largest           Series of Additional Obligations.  outstanding principal amount of any then outstanding Series of Additional Obligations; provided,  however, that if there are two outstanding Series of Additional Obligations which have an equal                   Original Investor                                         outstanding principal amount, the Series of Additional Obligations with the earlier maturity date  shall be considered to have the larger outstanding principal amount for purposes of this definition.              Payment                            ions (or any other liabilities or obligations), a                                                                                                             payment, prepayment, repayment, redemption, defeasance or discharge of those obligations (or         New York UCC          e Uniform Commercial Code as from time to time in effect in                   other liabilities or obligations).  the State of New York.                                                                                                                    Person                                                          association,         Non-Controlling  Authorized  Representative                                                         company, limited liability company, partnership, Governmental Authority or other entity.  Representative that is not the Applicable Authorized Representative at such time.                                                                                                                      Possessory  Collateral        Non-Controlling Authorized Representative Enforcement Date                                          Collateral Agent (or its agents or bailees), to the extent that possession or control thereof or any  any Non-Controlling Authorized Representative, the date which is 180 days (throughout which                account  in  which  such  Shared  Collateral  is  held  perfects  a  Lien  thereon  under  the  Uniform  180-day period such Non-Controlling Authorized Representative was the Major Non-Controlling                Commercial Code of any jurisdiction or other applicable Law.  Possessory Collateral includes,  Authorized Representative) after the occurrence of both (a) an Event of Default (under and as              without limitation, any Certificated Securities, Promissory Notes, Instruments, Chattel Paper or  defined in the Credit Agreement or the applicable Additional Agreement under which such Non-               any Deposit Account, commodities account or securities account, in each case, delivered to or in  Controlling Authorized Representative is the Authorized Representative) and (b) each Collateral            the possession or control of the Collateral Agent under the terms of the Security Documents.  All                                                                                 -                           capitalized terms used in this definition and not defined elsewhere in this Agreement have the  Controlling  Authorized  Representative  certifying  that  (i)  such  Non-Controlling  Authorized          meanings assigned to them in the New York UCC.  Representative  is  the  Major  Non-Controlling  Authorized  Representative  and  that  an  Event  of  Default  (under  and  as  defined  in  the  applicable  Credit  Agreement  or  applicable  Additional             Proceeds                                   Section 2.01 hereof.  Agreement  under  which  such  Non-Controlling  Authorized  Representative  is  the  Authorized                                                                                                                    Refinance Representative) has occurred and is continuing and (ii) the Obligations of the Series with respect                                                                                                             amend,  increase,  modify,  supplement,  restructure,  refund,  replace  or  repay,  or  to  issue  other  to which such Non-Controlling Authorized Representative is the Authorized Representative are                                                                                                             indebtedness or enter alternative financing arrangements, in exchange or replacement for such  currently  due  and payable  in  full  (whether  as  a  result  of  acceleration  thereof  or  otherwise)  in                                                                                                             indebtedness (in  whole  or in part),  including  by adding or  replacing  lenders, creditors, agents,  accordance with the terms of the Credit Agreement or applicable Additional Agreement; provided                                                                                                             borrowers and/or guarantors, and including, in each case, after the original instrument giving rise  that the Non-Controlling Authorized Representative Enforcement Date shall be stayed and shall                                                                                                             to  such  indebtedness  has  been  terminated  and  including,  in  each  case,  through  any  credit  not occur and shall be deemed not to have occurred with respect to any Shared Collateral (A) at                                                                                                                                                                               Refinanced any time the Credit Agreement Collateral Agent or the Credit Agreement Administrative Agent                                                                                                              Refinancing                        (or, after the  Discharge of the Credit Agreement Obligations, the then Applicable Authorized  Representative) has commenced and is diligently pursuing any enforcement action with respect to                   Secured  Credit  Documents      (a)  the  Credit  Agreement  and  the  other  Loan  such Shared Collateral or (B) at any time the Grantor which has granted a Lien in such Shared              Documents (as defined in the Credit Agreement), (b) the  Initial Additional Agreement and the  Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or           Notes  Documents  (as  defined  in  the  Initial  Additional  Agreement)  and  (c)  each  Additional  Liquidation Proceeding.                                                                                    Agreement.          Non-Controlling Secured Parties                                                                            Secured Parties     (a) the Credit Agreement Secured Parties and (b) the Additional  Secured Parties.                                                                                           Secured Parties.          Non-US Collateral                    eral granted by a Non-US Grantor in respect                           Security Agreements                (a) the Credit Agreement Security Agreement,  of the Obligations.                                                                                        and (b) the Initial Additional Security Agreements.                                           8                                                                                                         9  77660844_6                                                                                                 77660844_6 





 






                                                                                                                     Security Documents                 (a) the Credit Agreement Security Documents                      Grantor, the proceeds of any sale, collection or other liquidation of any Shared Collateral, Equity  and (b) the Additional Security Documents.                                                                 Release Proceeds, or Guarantee Release Proceeds received by any Secured Party or received by                                                                                                             the Controlling Collateral Agent or any Secured Party pursuant to any such intercreditor agreement         Series       (a) with respect to the Secured Parties, each of (i) the Credit Agreement              or otherwise with respect to such Shared Collateral and proceeds of any such distribution (subject,  Secured Parties (in their capacities as such), (ii) the Initial Additional Secured Parties (in their       in the case of any such distribution, to the second sentence hereof) to which the Obligations are  capacities  as  such)  and  (iii)  the  other  Additional  Secured  Parties  that  become  subject  to  this entitled under any intercreditor agreement (other than this Agreement) or otherwise (all proceeds  Agreement after the date hereof that are represented by a common Authorized Representative (in             of any sale, collection or other liquidation of any Collateral comprising either Shared Collateral,  their capacities as such) and (b) with respect to any Obligations, each of (i) the Credit Agreement        or  Equity  Release  Proceeds,  all  proceeds  of  any  such  distribution  and  any  proceeds  of  any  Obligations, (ii) the Initial Additional Obligations and (iii) the Additional Obligations incurred         insurance covering the Shared Collateral received by the Controlling Collateral Agent and not  pursuant  to  any  Additional  Agreement,  which  pursuant  to  any  Joinder  Agreement,  are  to  be      required  to be  returned to  any  Grantor under  any Secured  Credit  Document  and  all  Guarantee  represented hereunder by a common Authorized Representative (in its capacity as such for such                                                        Proceeds                (i) FIRST, to the  Additional Obligations).                                                                                   payment of all amounts owing to each Collateral Agent and Authorized Representative (in its                                                                                                             capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to         Shared Collateral                                                                                   Section  1.01(b),  to  the  payment  in  full  of  the  Obligations  (other  than  Cash  Collateralized  Series of Obligations (or their respective Authorized Representatives) hold a valid and perfected          Obligations) of each Series on a ratable basis in accordance with the terms of the applicable  security interest at such time.  If more than two Series of Obligations are outstanding at any time        Secured Credit Documents and (iii) THIRD, after the Discharge of all Obligations, to the Borrower  and the holders of less than all Series of Obligations hold a valid and perfected security interest in     or the other Grantors or their successors or assigns, as their interests may appear, or to whosoever  any Collateral at such time, then such Collateral shall constitute Shared Collateral for those Series      may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.   of Obligations that hold a valid security interest in such Collateral at such time and shall not           If, despite the provisions of the first sentence of this Section 2.01(a), any Secured Party shall  constitute Shared Collateral for  any  Series which  does not have  a valid and perfected  security        receive any payment or other recovery in excess of its portion of payments on account of the  interest in such Collateral at such time.                                                                  Obligations to which it is then entitled in accordance with this Section 2.01(a), such Secured Party                                                                                                             shall hold such payment or recovery in trust for the benefit of all Secured Parties for distribution         Subordinated  Shareholder  Funding                                                                  in accordance with this Section 2.01(a).  Notwithstanding the foregoing, with respect to any Shared  defined in the Credit Agreement (or any correlative term in any Additional Agreement that has              Collateral or Equity Release Proceeds for which a third party (other than a Secured Party) has a                                                                                                             lien or security interest that is junior in priority to the security interest of any Series of Obligations                                                                                                             but senior (as determined by appropriate legal proceedings in the case of any dispute) to the                                                                                                                                                                          Intervening Creditor        Subsidiary                                                                                                            the value of any Shared Collateral, Equity Release Proceeds or Proceeds which are allocated to  term in any Additional Agreem                                                                                                            such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral,                                                                                                                                                                    Equity Release Proceeds or Proceeds to be distributed in respect of the Series of Obligations with         US Grantor                                                                                          respect to which such Impairment exists.  United States of America, any State thereof or the District of Columbia.                                                                                                                   (b)   It is acknowledged that the Obligations of any Series may, subject to the limitations                                                                                                             set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced,                                                                                                             restated,  supplemented,  restructured,  repaid,  refunded,  Refinanced  or  otherwise  amended  or                                    ARTICLE II                                                               modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the                                                                                                             provisions of this Agreement defining the relative rights of the Secured Parties of any Series.    PRIORITIES AND AGREEMENTS WITH RESPECT TO SHARED COLLATERAL                                                                                                                   (c)   Notwithstanding the date, time, method, manner or order of grant, attachment or        SECTION 2.01       Priority of Claims.  (a) Anything contained herein or in any of the               perfection of any Liens securing any Series of Obligations granted on the Shared Collateral and  Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.01(b)), if (1)          notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other  an Event of Default has occurred and is continuing, and (2) either (x) the Controlling Collateral          applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing  Agent or any Secured Party is taking action to enforce rights in respect of any Shared Collateral,         the Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to  or (y) any distribution is made in respect or, on account of, any Shared Collateral or any claim           Section  1.01(b)),  each  Secured  Party  hereby  agrees  that  the  Liens  securing  each  Series  of  against any Grantor in any Bankruptcy Case of any Grantor or any Secured Party receives any                Obligations on any Shared Collateral shall be of equal priority.  payment pursuant to any intercreditor agreement (other than this Agreement) or otherwise with  respect to any Shared Collateral, any such claim against a Grantor in a Bankruptcy Case of such                                          10                                                                                                         11  77660844_6                                                                                                 77660844_6 





 






                                                                                                                    (d)    Notwithstanding anything in this Agreement or any other Security Documents to                       (c)   Each of the Authorized Representatives agrees that it will not accept any Lien on  the  contrary,  Collateral  consisting  of  cash  and  cash  equivalents  pledged  to  secure  Credit      any Collateral for the benefit of any Series of Obligations (other than funds deposited for the  Agreement Obligations consisting of reimbursement obligations in respect of letters of credit or in        discharge or defeasance of any Additional Agreement and, in the case of the Credit Agreement  respect of swing line loans or otherwise held by the Credit Agreement Collateral Agent pursuant            Obligations, cash collateral that may be required to be deposited in connection with the obligations  to Section 2.25, 2.26(g), 2.27(g) or Article 7 of the Credit Agreement (or any equivalent successor        of a Defaulting Lender, with respect to Letters of Credit or Swing Line Loans, or in connection  provision)  (any  such  cash  collateralized  ob               Cash  Collateralized                        with  an  Event  of  Default  under  the  Credit  Agreement)  other  than  pursuant  to  the  Security  Obligations                                                                                                Documents,  and  by  executing  this  Agreement  (or  a  Joinder  Agreement),  each  Authorized  Collateral.                                                                                                Representative and the Series of Secured Parties for which it is acting hereunder agree to be bound                                                                                                             by the provisions of this Agreement and the other Security Documents applicable to it.        SECTION 2.02       Actions  with  Respect  to  Shared  Collateral;  Prohibition  on  Contesting Liens.  (a) With respect to any Shared Collateral, (i) only the Controlling Collateral                (d)   Each of the Secured Parties agrees that it will not (and hereby waives any right to)  Agent shall act or refrain from acting with respect to the Shared Collateral (including with respect       contest or support any other Person in contesting, in any proceeding (including any Insolvency or  to  any  intercreditor  agreement  with  respect  to  any  Shared  Collateral),  and  then  only  on  the  Liquidation Proceeding), the perfection, priority, validity or enforceability of a Lien held by or on  instructions of the Applicable Authorized Representative,  (ii) the Controlling Collateral Agent           behalf of any of the Secured Parties in all or any part of the Collateral, or the provisions of this  shall not follow any instructions with respect to such Shared Collateral (including with respect to        Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the  any  intercreditor  agreement  with  respect  to  any  Shared  Collateral)  from  any  Non-Controlling     rights of any Collateral Agent or any Authorized Representative to enforce this Agreement.  Authorized  Representative  or  any  other  Secured  Party  (other  than  the  Applicable  Authorized  Representative) and (iii) no Non-Controlling Authorized Representative or other Secured Party                    SECTION 2.03      No Interference; Payment Over.  (a) Each Secured Party agrees that  (other  than  the  Applicable  Authorized  Representative)  shall,  or  shall  instruct  the  Controlling  (i)  it  will  not  challenge  or  question  in  any  proceeding  the  validity  or  enforceability  of  any  Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect             Obligations of any Series or any Security Document or the validity, attachment, perfection or  to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any    priority of any Lien under any Security Document or the validity or enforceability of the priorities,  action to take possession of, exercise any right, remedy or power with respect to, or otherwise take       rights or duties established by or other provisions of this Agreement; (ii) it will not take or cause  any action to enforce its security interest in or realize upon, or take any other action available to it   to be taken any action the purpose or intent of which is, or could be, to interfere with, hinder or  in respect of, any Shared Collateral (including with respect to any intercreditor agreement with           delay, in any manner, whether by judicial proceedings or otherwise, any  sale, transfer or other  respect  to  any  Shared  Collateral),  whether  under  any  Security  Document,  applicable  law  or      disposition of the Shared Collateral by the Controlling Collateral Agent, (iii) except as provided  otherwise, it being agreed that only the Controlling Collateral Agent, acting on the instructions of       in Section 2.02, it shall have no right to (A) direct the Controlling Collateral Agent or any other  the  Applicable  Authorized  Representative  and  in  accordance  with  the  applicable  Security          Secured  Party  to  exercise  any  right,  remedy  or  power  with  respect  to  any  Shared  Collateral  Documents, shall be entitled to take any such actions or exercise any such remedies with respect           (including  pursuant  to  any  intercreditor  agreement)  or  (B)  consent  to  the  exercise  by  the  to Shared Collateral.  Notwithstanding the equal priority of the Liens, the Controlling Collateral         Controlling Collateral Agent or any other Secured Party of any right, remedy or power with respect  Agent (acting on the instructions of the Applicable Authorized Representative) may deal with the           to any Shared Collateral, (iv) it will not institute any suit or assert in any Insolvency or Liquidation  Shared  Collateral as  if  such Applicable Authorized  Representative had a senior  Lien on such           Proceeding or any other proceeding any claim against the Controlling Collateral Agent or any  Collateral.  No Non-Controlling Authorized Representative or Non-Controlling Secured Party will            other  Secured  Party  seeking  damages  from  or  other  relief  by  way  of  specific  performance,  contest,  protest  or  object  to  any  foreclosure  proceeding  or  action  brought  by  the  Controlling instructions  or  otherwise  with  respect  to  any  Shared  Collateral,  and  none  of  the  Controlling  Collateral Agent, Applicable Authorized Representative or Controlling Secured Party or any other           Collateral Agent, any Applicable Authorized Representative or any other Secured Party shall be  exercise by the Controlling Collateral Agent, Applicable Authorized Representative or Controlling          liable  for  any  action  taken or  omitted  to be  taken  by the  Controlling  Collateral Agent,  such  Secured  Party  of  any  rights  and  remedies  relating  to  the  Shared  Collateral,  or  to  cause  the Applicable Authorized Representative or other Secured Party with respect to any Shared Collateral  Controlling Collateral Agent to do so.  The foregoing shall not be construed to limit the rights and       in accordance with the provisions of this Agreement, (v) it will not seek, and hereby waives any  priorities of any Secured Party, Controlling Collateral Agent or Authorized Representative with            right, to have any Shared Collateral or any part thereof marshaled upon any foreclosure or other  respect to any Collateral not constituting Shared Collateral.                                              disposition of such Collateral and (vi)it will not attempt, directly or indirectly, whether by judicial                                                                                                             proceedings  or otherwise, to challenge  the enforceability  of any provision  of this  Agreement;        (b)    Without limiting the provisions of Section 4.02, each Authorized Representative               provided that nothing in this Agreement shall be construed to prevent or impair the rights of any  and each Secured Party that is not the Controlling Collateral Agent hereby appoints the Controlling        Collateral Agent or any other Secured Party to enforce this Agreement.  Collateral Agent as its agent and authorizes the Controlling Collateral Agent to exercise any and  all  remedies  under each  Security  Document  with  respect  to Shared Collateral and  to execute               (b)   Each Secured Party hereby agrees that if it shall obtain possession of any Shared  releases in connection therewith, including as required by Section 2.04.                                   Collateral or shall realize any proceeds  or payment in respect of any  such Shared Collateral,                                                                                                             pursuant to any Security Document or by the exercise of any rights available to it under applicable                                                                                                             law or in any Insolvency or Liquidation Proceeding or through  any other exercise of remedies                                          12                                                                                                         13  77660844_6                                                                                                 77660844_6 





 






                                                                                                              (including pursuant to any intercreditor agreement), at any time prior to the Discharge of each of               (b)   Each Collateral Agent and Authorized Representative agrees to execute and deliver  the Obligations, then it shall hold such Shared Collateral, proceeds or payment in trust for the other     (at the sole cost and expense of the Grantors) all such authorizations and other instruments as shall  Secured Parties and promptly transfer such Shared Collateral, proceeds or payment, as the case             reasonably be requested by the Controlling Collateral Agent to evidence and confirm any release  may be, to the Controlling Collateral Agent, to be distributed in accordance with the provisions of        of  Shared  Collateral,  transfer  or  release  of  liens,  transfer  or  release  of  guarantees  or  other  Section 2.01 hereof.                                                                                       obligations or related amendment to any Security Document or other Secured Credit Document                                                                                                             provided for in this Section 2.04.        (c)    None of the Controlling Collateral Agent, any Authorized Representative or any  other Secured Party shall be liable for any action taken or omitted to be taken by the Controlling               SECTION 2.05      Certain  Agreements  with  Respect  to  Insolvency  or  Liquidation  Collateral Agent, such Authorized Representative or any other Secured Parties with respect to any          Proceedings.   (a)  This  Agreement  shall  continue  in  full  force  and  effect  notwithstanding  the  Shared Collateral in accordance with the provisions of this Agreement.                                     commencement of any proceeding under any Bankruptcy Law by or against the Borrower or any                                                                                                             other Grantor.        SECTION 2.04       Automatic Release of Liens; Amendments to Security Documents.   (a) If, at any time the Controlling Collateral Agent forecloses upon or otherwise exercises remedies             (b)                                              Bankruptcy  Case against any Shared Collateral, then (whether or not any Insolvency or Liquidation Proceeding is            Bankruptcy Code and shall, as debtor(s)-in-                                 DIP  pending at the time) the Liens in favor of the other Collateral Agent for the benefit of each Series       Financing                                      DIP Lenders  nder Section 364 of the  of Secured Parties upon such Shared Collateral will automatically be released and discharged;              Bankruptcy Code or the use of cash collateral under Section 363 of the Bankruptcy Code, each  provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant           Secured Party agrees that it will raise no objection to any such financing or to the Liens on the  to Section 2.01 hereof.  If in connection with any such foreclosure or other exercise of remedies                                          DIP Financing Liens by  the  Controlling  Collateral  Agent,  the  Controlling  Collateral  Agent  or  related  Authorized     constitutes Shared Collateral, unless the Applicable Authorized Representative shall then oppose  Representative of a Series releases any Guarantor from its obligation under a Guarantee of the             or object to such DIP Financing or such DIP Financing Liens or use of cash collateral (and (i) to  Series for which it serves as Collateral Agent or Authorized Representative prior to a Discharge           the extent that such DIP Financing Liens are senior to the Liens on any such Shared Collateral for  of such  Series,  such  Guarantor also shall be released from  its  Guarantee of  all other  Series  of    the  benefit  of  the  Controlling  Secured  Parties,  each  Non-Controlling  Secured  Party  will  Additional Obligations provided that any proceeds received by such Controlling Collateral Agent            subordinate its Liens with respect to such Shared Collateral on the same terms as the Liens of the                                                         Guarantee Release Proceeds                          Controlling  Secured  Parties  (other  than  any  Liens  of  any  Secured  Parties  constituting  DIP  shall be applied pursuant to Section 2.01 hereof.  If in connection with any such foreclosure or           Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP Financing Liens  other exercise of remedies by the Controlling Collateral Agent, Collateral consisting of Capital           rank pari passu with the Liens on any such Shared Collateral granted to secure the Obligations of  Stock of any Person is foreclosed upon or otherwise disposed of and the Controlling Collateral             the Controlling Secured Parties, each Non-Controlling Secured Party will confirm the priorities  Agent releases its Lien on the property or assets of such Person that constitutes Shared Collateral,       with respect to such Shared Collateral as set forth herein), in each case so long as (A) the Secured  then the Liens of each other Collateral Agent (or in favor of such other Secured Parties if directly       Parties of each Series retain the benefit of their Liens on all such Shared Collateral pledged to the  secured by such Liens) with respect to any Shared Collateral consisting of the property or assets          DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with  of such Person will be automatically released to the same extent as the Liens of the Controlling           the same priority vis-a-vis all the other Secured Parties (other than any Liens of the Secured Parties  Collateral Agent are released; provided that any proceeds of any such Capital Stock foreclosed             constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case,  upon where the Controlling Collateral Agent releases its Lien on the assets of such Person which           (B) the Secured Parties of each Series are granted Liens on any additional collateral pledged to  constitute  Shared  Collateral  for  another  Series  of  Obligations  is  released  as  provided  in  this any Secured Parties as adequate protection or otherwise in connection with such DIP Financing or                                                  Equity Release Proceeds                                    use of cash collateral, with the same priority vis-a-vis the Secured Parties as set forth in this  whether or not the Capital Stock so disposed of such Person constitutes Shared Collateral for such         Agreement, (C) if any amount of such DIP Financing or cash collateral is applied to repay any of  other Series of Obligations) shall be applied pursuant to Section 2.01 hereof.  In furtherance of the      the Obligations, such amount is applied pursuant to Section 2.01 of this Agreement, and (D) if any  foregoing, each Grantor and each Investor agrees that upon request of the Controlling Collateral           Secured Parties are granted adequate protection, including in the form of periodic payments, in  Agent or the Applicable Authorized Representative, any intragroup indebtedness of any Grantor              connection with such DIP Financing or use of cash collateral, the proceeds of such adequate  held by another Grantor or any Investor Obligations held by an Investor, and, in each case, any            protection  are  applied  pursuant  to  Section  2.01  of  this  Agreement;  provided  that  the  Secured  liens supporting such indebtedness, shall be released by such Grantor or such Investor in the              Parties of each Series shall have a right to object to the grant of a Lien to secure the DIP Financing  circumstances where the corresponding Guarantees of such Grantor are released by the Controlling           over any Collateral subject to Liens in favor of the Secured Parties of such Series or its Authorized  Collateral  Agent  or  any  Authorized  Representative  as  set  forth  above.   Each  Authorized          Representative that shall not constitute Shared Collateral; and provided further, that the Secured  Representative (for itself and the Secured Parties it represents), each Investor and each Grantor          Parties receiving adequate protection shall not object to any other Secured Party receiving adequate  further agree that if requested by the Controlling Collateral Agent or the Applicable Authorized           protection comparable to any adequate protection granted to such Secured Parties in connection  Representative,  such  liens,  guarantees,  Investor  Obligations  and  intragroup  indebtedness,  as      with a DIP Financing or use of cash collateral.  applicable, may be transferred to another Grantor rather than released.                                         14                                                                                                         15  77660844_6                                                                                                 77660844_6 





 






                                                                                                                    (c)    Each  Secured Party  agrees  that,  in  an  Insolvency  or  Liquidation Proceeding or         assignee solely for the purpose of perfecting the Lien granted in such Possessory Collateral, if any,  otherwise, none of them will oppose any sale or disposition of any Shared Collateral of any Grantor        pursuant to the applicable Security Documents, in each case, subject to the terms and conditions  that is supported by the Controlling Secured Parties, or the Applicable Authorized Representative,         of this Section 2.09.  Pending delivery to the Controlling Collateral Agent, each other Authorized  and will be deemed to have consented under Section 363 of the Bankruptcy Code (and otherwise)              Representative agrees to hold any Shared Collateral constituting Possessory Collateral, from time  to any such sale or disposition and to have released its Liens on the assets so sold or disposed;          to time in its possession, as gratuitous bailee for the benefit of each other Secured Party and any  provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant           assignee, solely for the purpose of perfecting the Lien granted in such Possessory Collateral, if  to Section 2.01 hereof.                                                                                    any,  pursuant  to  the  applicable  Security  Documents,  in  each  case,  subject  to  the  terms  and                                                                                                             conditions of this Section 2.09; provided that at any time the Credit Agreement Collateral Agent        (d)    Each  Secured  Party  agrees  that  (i)  the  grants  of  Liens  pursuant  to  the  Credit    is not the Controlling Collateral Agent, the Credit Agreement Collateral Agent shall, at the request  Agreement Security Documents and the Additional Security Documents constitute two separate                 of the Additional Collateral Agent promptly deliver all Possessory Collateral to the Additional  and distinct grants of Liens and (ii) because of, among other things, their differing rights in the        Collateral Agent together with any necessary endorsements (or otherwise allow the Additional  Shared  Collateral,  the  Additional  Obligations  are  fundamentally  different  from  the  Credit        Collateral Agent to obtain control of such Possessory Collateral).  Agreement Obligations and must be separately classified in any plan of reorganization proposed  or adopted in an Insolvency or Liquidation Proceeding.  To further effectuate the intent of the                  (b)   In the event that any Secured Party other than the Controlling Collateral Agent  parties as provided in the immediately preceding sentence, if it is held that the claims of the Credit     receives any Possessory Collateral, then such Secured Party shall promptly deliver, or transfer  Agreement Secured Parties and any Series of Additional Secured Parties in respect of the Shared            control  of,  such  Possessory  Collateral  (including  any  proceeds  therefrom),  together  with  any  Collateral  constitute only  one  class  of secured claims (rather  than separate  classes  of secured     necessary  endorsements  and  notices  to  depository  banks,  securities  intermediaries  and  claims), then the Additional Secured Parties hereby acknowledge and agree that all distributions           commodities intermediaries, to the Controlling Collateral Agent.  shall be made as if there were separate classes of secured claims against the Grantors in respect of  the Shared Collateral.                                                                                           (c)   The duties or responsibilities of each Collateral Agent and each other Authorized                                                                                                             Representative under this Section 2.09 shall be limited solely to holding any Shared Collateral        SECTION 2.06       Reinstatement.  In the event that any of the Obligations shall be paid            constituting Possessory Collateral as gratuitous bailee for the benefit of each other Secured Party  in full and such payment or any part thereof shall subsequently, for whatever reason (including an         for purposes of perfecting the Lien held by such Secured Parties therein.  order or judgment for disgorgement of a preference under Title 11 of the United States Code, or  any similar law, or the settlement of any claim in respect thereof), be required to be returned or               SECTION 2.10      Amendments to Security Documents.  (a) Without the prior written  repaid, the terms and conditions of this Article II shall be fully applicable thereto until all such       consent of the Credit Agreement Collateral Agent, each Additional Secured Party agrees that no  Obligations shall again have been paid in full in cash.                                                    Additional Security Document may be amended, supplemented or otherwise modified or entered                                                                                                             into to the extent such amendment, supplement or modification, or the terms of any new Additional        SECTION 2.07       Insurance.   As  between  the  Secured  Parties,  the  Controlling                Agreement would be prohibited by, or would require any Grantor to act or refrain from acting in  Collateral Agent, acting at the direction of the Applicable Authorized Representative, shall have          a manner that would violate, any of the terms of this Agreement.  the right to adjust or settle any insurance policy or claim covering or constituting Shared Collateral  in the event of any loss thereunder and to approve any award granted in any condemnation or                      (b)   Without the prior written consent of the Additional Collateral Agent, the Credit  similar proceeding affecting the Shared Collateral.                                                        Agreement  Collateral  Agent  agrees  that  no  Credit  Agreement  Security  Document  may  be                                                                                                             amended, supplemented  or otherwise modified or entered into to the extent such  amendment,        SECTION 2.08       Refinancings.  The Obligations of any Series may be Refinanced, in                supplement or modification, or the terms of any new Credit Agreement Security Document would  whole or in part, in each case, without notice to, or the consent (except to the extent a consent is       be prohibited by, or would require any Grantor to act or refrain from acting in a manner that would  otherwise required to permit the refinancing transaction under any Secured Credit Document) of             violate, any of the terms of this Agreement.  any Secured Party of any other Series, all without affecting the priorities provided for herein or  the other provisions hereof; provided that the Authorized Representative of the holders of any such              (c)   In making determinations required by this Section 2.10, each Collateral Agent may  Refinancing indebtedness (if not already a party hereto in its capacity as Authorized Representative       conclusively rely on a certificate of an Authorized Officer of the Borrower.  of the indebtedness being refinanced) shall have executed a Joinder Agreement on behalf of the  holders of such Refinancing indebtedness.                                                                        (d)   In  the  event  that  the  Controlling  Collateral  Agent  enters  into  any  amendment,                                                                                                             waiver or consent in respect of any of the Security Documents for the purpose of adding to, or        SECTION 2.09       Possessory  Collateral  Agent  as  Gratuitous  Bailee  for  Perfection.           deleting from, or waiving or consenting to any departures from any provisions of, any Security  (a) The Controlling Collateral Agent agrees to hold any Shared Collateral constituting Possessory          Document or changing in any manner the rights or any parties thereunder, then such amendment,  Collateral that is part of the Collateral in its possession or control (or in the possession or control    waiver or consent shall apply automatically to any comparable provision of any other Security  of its agents or bailees) as gratuitous bailee for the benefit of each other Secured Party and any         Document without  the  consent  of any Secured  Party  (with  all  such  amendments,  waiver  and                                          16                                                                                                         17  77660844_6                                                                                                 77660844_6 





 






                                                                                                              modifications subject to the terms hereof); provided that (other than with respect to amendments,          Controlling Collateral Agent to any Non-Controlling Secured Party or give any Non-Controlling  modifications or waivers that secured additional extensions of credit and add additional secured           Secured Party the right to direct any Controlling Collateral Agent, except that each Controlling  creditors  and  do  not  violate  the  express  provision  of  any  Security  Document),  (i)  no  such    Collateral Agent shall be obligated to distribute proceeds of any Shared Collateral in accordance  amendment, waiver or consent shall have the effect of removing assets subject to the Lien of any           with Section 2.01 hereof.  Security Document, except to the extent that a release of such Lien is permitted by Section 2.04,  (ii) any such amendment, waiver or consent that materially and adversely affects the rights of the               (b)   In furtherance of the foregoing, each Non-Controlling Secured Party acknowledges  Non-Controlling Secured Parties (other than any Authorized Representative) and does not affect             and agrees that the Controlling Collateral Agent shall be entitled, for the benefit of the Secured  the  Controlling  Secured  Parties  in  a  like  or  similar  manner  shall  not  apply  to  the  Security Parties, to sell, transfer or otherwise dispose of or deal with any Shared Collateral as provided  Documents  without  the  consent  of  the  Authorized  Representatives  for  the  Non-Controlling          herein and in the Security Documents, without regard to any rights to which the Non-Controlling  Secured  Parties,  (iii)  no  such  amendment,  waiver,  or  consent  with  respect  to  any  provision    Secured Parties would otherwise be entitled as a result of such Non-Controlling Secured Parties.   applicable to an Authorized Representative for any Non-Controlling Secured Parties shall be made           Without  limiting  the  foregoing,  each  Non-Controlling  Secured  Party  agrees  that  none  of  the  without  the  prior  written  consent  of  such  Authorized  Representative  and  (iv)  notice  of  such   Controlling  Collateral  Agent,  the  Applicable  Authorized  Representative  or  any  other  Secured  amendment, waiver or consent  shall  be  given the  Authorized Representatives (other than  the            Party shall have any duty or obligation first to marshal or realize upon any type of Shared Collateral  Controlling Collateral Agent) no later than 30 days after its effectiveness, provided that the failure     (or  any  other  Collateral  securing  any  of  the  Obligations),  or  to  sell,  dispose  of  or  otherwise  to give such notice shall not affect the effectiveness and validity thereof.                               liquidate  all  or  any  portion  of  such  Shared  Collateral  (or  any  other  Collateral  securing  any                                                                                                             Obligations),  in  any  manner  that  would  maximize the return  to the  Non-Controlling  Secured                                    ARTICLE III                                                              Parties,  notwithstanding  that  the  order  and  timing  of  any  such  realization,  sale,  disposition  or                                                                                                             liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured             EXISTENCE AND AMOUNTS OF LIENS AND OBLIGATIONS                                                  Parties from such realization, sale, disposition or liquidation.  Each of the Secured Parties waives                                                                                                             any  claim  it  may  now  or  hereafter  have  against  any  Collateral  Agent  or  the  Authorized        SECTION 3.01       Determinations with Respect to Amounts of Liens and Obligations.                  Representative of any other Series of Obligations or any other Secured Party of any other Series  Whenever a Collateral Agent or any Authorized Representative shall be required, in connection              arising out of (i) any actions which any Collateral Agent, any Authorized Representative or any  with the exercise of its rights or the performance of its obligations hereunder, to determine the          Secured Party takes or omits to take (including, actions with respect to the creation, perfection or  existence or amount of any Obligations of any Series, or the Shared Collateral subject to any Lien         continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release  securing the Obligations of any Series, it may request that such information be furnished to it in         or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the  writing by each other Authorized Representative and shall be entitled to make such determination           collection of any claim for all or any part of the Obligations from any account debtor, guarantor or  on  the  basis  of  the  information  so  furnished;  provided,  however,  that  if  an  Authorized        any other party) in accordance with the Security Documents or any other agreement related thereto  Representative shall fail or refuse reasonably promptly to provide the requested information, the          or to the collection of the Obligations or the valuation, use, protection or release of any security  requesting  Collateral  Agent  or  Authorized  Representative  shall  be  entitled  to  make  any  such    for the Obligations, (ii) any election by any Applicable Authorized Representative or any holders  determination by such method as it may, in the exercise of its good faith judgment, determine,             of Obligations, in any proceeding instituted under the Bankruptcy Code, of the application of  including  by  reliance  upon  a  certificate  of  the  Borrower.   Each  Collateral  Agent  and  each     Section 1111(b) of the Bankruptcy Code or (iii) subject to Section 2.05, any borrowing by, or grant  Authorized Representative may rely conclusively, and shall be fully protected in so relying, on            of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code  any determination made by it in accordance with the provisions of the preceding sentence (or as            or  any  equivalent  provision  of  any  other  Bankruptcy  Law,  by  the  Borrower  or  any  of  its  otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor,       subsidiaries, as debtor-in-possession.  Notwithstanding any other provision of this Agreement, the  any Secured Party or any other person as a result of such determination. Each Collateral Agent             Controlling Collateral Agent shall not accept any Shared Collateral in full or partial satisfaction of  may conclusively presume that there has been no Impairment with respect to any Series unless it            any Obligations pursuant to Section 9-620 of the Uniform Commercial Code of any jurisdiction,  has received a written notice, in accordance with Section 6.01 hereof, of such Impairment which,           without the consent of  each Authorized Representative representing holders of Obligations for  in the case of an Impairment under clause (i) of Section 1.1(b), includes the court determination          whom such Collateral constitutes Shared Collateral.  on which such Impairment is based.                                                                                                                   SECTION 4.02      Non-Reliance on Controlling Collateral Agent and Other Secured                                    ARTICLE IV                                                               Parties.  Each Secured Party acknowledges that it has, independently and without reliance upon                                                                                                             the Controlling Collateral Agent, any other Authorized Representative or any other Secured Party        THE CONTROLLING COLLATERAL AGENT; DESIGNATED COMMON                                                  or  any  of  their  Affiliates  and  based  on  such  documents  and  information  as  it  has  deemed                               COLLATERAL AGENT                                                              appropriate, made its own credit analysis and decision to enter into this Agreement and the other                                                                                                             Secured Credit Documents.  Each Secured Party also acknowledges that it will, independently and        SECTION 4.01       Authority.   (a)  Notwithstanding  any  other  provision  of  this                without  reliance  upon  the  Controlling  Collateral Agent,  any  Authorized  Representative  or any  Agreement,  nothing  herein  shall  be  construed  to  impose  any  fiduciary  or  other  duty  on  any    other Secured Party or any of their Affiliates and based on such documents and information as it                                          18                                                                                                         19  77660844_6                                                                                                 77660844_6 





 






                                                                                                              shall from time to time deem appropriate, continue to make its own decisions in taking or not                                                ARTICLE V  taking action under or based upon this Agreement, any other Secured Credit Document or any                                                           related agreement or any document furnished hereunder or thereunder.                                                                  INVESTOR OBLIGATIONS         SECTION 4.03       Designated Common Collateral Agent.  To the extent required by                          SECTION 5.01      Subordination of Investor Obligations.  Each Investor covenants and  the laws of, or consistent with customary practice in, the jurisdiction of organization or operation       agrees,  notwithstanding  anything  to  the  contrary  contained  in  any  of  the  Secured  Credit  of any Non-US Grantor, as determined by the Borrower and each Authorized Representative, and               Documents, that at all times prior to the Discharge of Secured Obligations, the payment of any and  without limiting and in acknowledgement of the separate appointment of each of the Collateral              all Investor Obligations shall be subordinated and subject in right and time of payment to the  Agents:                                                                                                    Obligations to the extent and in the manner set forth in this Agreement.         (a)    Each Secured Party confirms the appointment by each Authorized Representative                       SECTION 5.02      Restriction  on  Payment.   Prior  to  the  Discharge  of  Secured  and  each  Collateral  Agent,  at  any  time  determined  reasonably  necessary  by  such  Authorized      Obligations, the Grantors shall not make any Payments in respect of the Investor Obligations at  Representative  and  the  Borrower,  consistent  with  the  principles  set  forth  in  this  Section,  of any  time  unless  no  Acceleration  Event  is  then  outstanding  and  either  (a)  the  Payment  is  not                                                        Designated Common Collateral                         prohibited under the Secured Credit Documents; or (b) the Applicable Authorized Representative  Agent                                                                                                      consents to the Payment being made.  Non-US Security Interests for and on behalf of the Secured Parties pursuant to the provisions of  this Agreement and the applicable Non-US Security Interests, including for purposes of acquiring,                SECTION 5.03      No Acquisition of Investor Obligations.  Prior to the Discharge of  holding and enforcing any and all Liens on Shared Collateral granted by any of the Grantors to             all Obligations, the Grantors shall not (a) enter into any Investor Obligations Acquisition in respect  secure any  of  the  Obligations, together  with  such  powers  and  discretion  on  its  behalf  as  are  of any of the Investor Obligations with any person which is not a Grantor or (b) beneficially own  reasonably incidental thereto.  Without limiting the generality of the foregoing, each of the Secured      all or any part of the share capital of a company that is party to an Investor Obligations Acquisition  Parties, each hereby expressly authorize the Designated Common Collateral Agent to execute any             in respect of any of the Investor Obligations (unless that Investor Obligations Acquisition would  and all documents (including releases) with respect to the Non-US Security Interests and the rights        not have been prohibited by this Section 5.03 if made by a Grantor), in each case pursuant to which  of the Secured Parties with respect thereto, as contemplated by, subject to, and in accordance with        any payment is made by  a Grantor to a person which is not a Grantor in respect of Investor  or otherwise in connection with the provisions of this Agreement and such applicable Security              Obligations, unless no Acceleration Event is then outstanding and either (i) that action is not  Documents and acknowledge and agree that any such action by the Designated Common Collateral               prohibited by the Secured Credit Documents, (ii) the relevant Investor Obligations Acquisition  Agent (as directed by the Applicable Authorized Representative) shall bind the Secured Parties.            relates to Investor Obligations (or rights, benefits and/or obligations in relation thereto) in respect                                                                                                             of which a Payment could be made under Section 5.02 or (iii) in relation to each Secured Credit        (b)    The  Designated  Common  Collateral  Agent  confirms  that  it  shall  accept  such           Document  that  prohibits  that  action,  the  Applicable  Representative  under  that  Secured  Credit  appointment and that following any appointment of the Designated Common Collateral Agent                   Document consents to that action.  pursuant to this Section, it shall hold any such applicable Shared Collateral in which it has liens  on trust for each of the Secured Parties on the terms contained in this Agreement as if it were the              SECTION 5.04      Collateral; Guarantees.  Prior to the Discharge of all Obligations, the  Collateral Agent for such Series of Obligations.                                                           Investors may not take, accept or receive the benefit of any Collateral, guarantee, indemnity or                                                                                                             other assurance against loss in respect of Investors Obligations.          (c)    Following any appointment of the Designated Common Collateral Agent pursuant  to  this  Section,  the  Designated  Common  Collateral  Agent  shall  (x)  in  case  of  non-accessory          SECTION 5.05      Payment  Obligations  Continue.   None  of  the  Grantors  shall  be  security rights, hold, administer and, as the case may be, enforce the applicable Non-US Security          released  from  the  obligation  to  make  any  Payment  (including,  without  limitation,  of  default  Interests in its own name, but for the account of all of the Secured Parties; and (y) in case of           interest, which shall continue to accrue) under any Investor Document by the operation of Section  accessory security rights created by way of pledge or other accessory instruments, administer and,         5.02 even if its obligation to make that Payment is restricted at any time by the terms of such  as the case may be, enforce the applicable Non-US Security Interests in the name of, or in its own         Section 5.02.  name, but in each case, for and on behalf of, the Secured Parties (or any of them), in each case of  clauses  (x)  and  (y),  subject  to,  and  in  accordance  with,  the  terms  and  restrictions  otherwise      SECTION 5.06      Turnover in Respect of Investor Obligations.  If at any time prior to  applicable to Collateral Agents in this Agreement.                                                         the Discharge of Secured Obligations an Investor receives or recovers a payment or distribution of                                                                                                             any  kind  whatsoever  (including  by  way  of  set-off)  in  respect  or  on  account  of  any  Investor                                                                                                             Obligations which is prohibited by the terms of this Agreement or any Secured Credit Document,                                                                                                             the relevant Investor will notify the Applicable Authorized Representative and, if requested by the                                                                                                             Applicable Authorized Representative promptly pay all amounts and distributions received by it                                                                                                             to  the  Applicable  Authorized  Representative  for  application  towards  the  payment  of  the                                          20                                                                                                         21  77660844_6                                                                                                 77660844_6 





 






                                                                                                              Obligations in accordance with Section 2.01 after deducting the costs, liabilities and expenses (if              (b)   Investor  Joinder  Agreement.   With  effect  from  the  date  of  acceptance  by  the  any) reasonably incurred in recovering or receiving the payment or distribution and, pending that          Applicable  Authorized  Representative  of  an  Investor  Joinder  Agreement,  duly  executed  and  payment, and until such amounts and distributions are so turned over, will hold those amounts and          delivered to the Applicable Authorized Representative by the relevant joining party:  distributions in trust for (or, to the extent the concept of trust is not recognized in the relevant  jurisdiction, on behalf of and for the benefit of) the Secured Parties.  If, for any reason, any of the                (i)   any party ceasing entirely to be a Secured Party shall be discharged from  trusts expressed to be created in this Article V should fail or be held to be unenforceable, the                 further obligations towards each Applicable Authorized Representative and other parties  relevant Investor will, unless otherwise agreed by the Applicable Authorized Representative and                  under this Agreement  and their respective  rights against one another shall be cancelled  subject to receiving payment instructions and any other relevant information from the Applicable                 (except in each case for those rights which arose prior to that date); and  Authorized  Representative,  promptly  pay  an  amount  equal  to  that  receipt  or  recovery  to  the  Applicable  Authorized  Representative  for  application  in  accordance  with  the  terms  of  this                   (ii)  as from that date, the replacement or new Investor shall assume the same  Agreement.                                                                                                       obligations and become entitled to the same rights, as if it had been an original party in the                                                                                                                   capacity specified in the Investor Joinder Agreement.        SECTION 5.07       Investor Obligations: Exceptions.  Notwithstanding anything to the  contrary, nothing in this Agreement shall prohibit or restrict:                                                  (c)   Additional  Parties.   Each  of  the  parties  appoints  the  Applicable  Authorized                                                                                                             Representative  to  receive  on  its  behalf  each  Investor  Joinder  Agreement  delivered  to  the        (a)    any Payment made to an Investor under and in accordance with the terms of any                 Applicable  Authorized  Representative  and  the  Applicable  Authorized  Representative  shall,  as  Secured Credit Documents;                                                                                  soon as reasonably practicable after receipt by it, sign and accept the same if it appears on its face                                                                                                             to have been completed, executed and, where applicable, delivered in the form contemplated by        (b)    any  Payment  or  other  return  made  by  way  of  a  roll-up  or  capitalization  of  any   this Agreement.  amount,  an  issue  of  shares,  an  incurrence  of  indebtedness  constituting  Investor  Obligations  (including the issue of payment-in-kind instruments) or any other similar or equivalent step, action                                         ARTICLE VI  or arrangement;                                                                                                                                                                                                                                                                                MISCELLANEOUS        (c)    any forgiveness, write-off or capitalization of Investor Obligations (or any other  similar or equivalent step or action);                                                                           SECTION 6.01      Notices.  All notices and other communications provided for herein                                                                                                             shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified        (d)    any  payment  made  (whether  cash  or  in  kind)  or other  step  or  action  taken  to      or registered mail or sent by telecopy, as follows:  facilitate any Payment (or other matter) in respect of any Investor Obligations (in each case to the  extent that such Payment or other matter is not prohibited by this Article V);                                   (a)   if to the Credit Agreement Administrative Agent, to it at:          (e)    the Investor from granting any Lien over or in relation to the Investor Obligations                       BNP Paribas, 787 Seventh Avenue, New York, NY 10019  or any related rights in respect thereof.                                                                              Attn: Charles Romano and Yuqiao Lin                                                                                                                          Tel Number: (212) 841-2968, (212) 340-5374         SECTION 5.08       Changes to Parties.                                                                           Email:  charles.romano@us.bnpparibas.com, yuqiao.lin@us.bnpparibas.com         (a)    Change of Investor.  Subject to Section 5.03, an Investor may:                                      (b)   if  to  the  Credit  Agreement  Collateral  Agent,  the  Initial  Additional  Authorized                                                                                                             Representative or the Initial Additional Collateral Agent, to it at:                (i)   assign any of its rights; or                                                                                                                         Deutsche Bank Trust Company Americas               (ii)  transfer any of its rights and obligations,                                                         Trust & Agency Services                                                                                                                         60 Wall Street, 24th Floor  in respect of the Investor Obligations owed to it if any assignee or transferee (if not already party                  Mail Stop: NYC60-2405  to this Agreement as an Investor) becomes a party to this Agreement as an Investor pursuant to an                      New York, New York 10005  Investor Joinder Agreement.                                                                                            United States of America                                                                                                                         Attention of: Corporate Team  BidFair MergeRight Inc.                                                                                                                         Facsimile: +1 (732) 578-4635                                           22                                                                                                         23  77660844_6                                                                                                 77660844_6 





 






                                                                                                                    (c)    If to any other Additional Authorized Representative, to it at the address set forth                (d)   Notwithstanding the foregoing, without the consent of any Secured Party, and at  in the applicable Joinder Agreement.                                                                       the request of the Borrower, the parties hereto shall amend this Agreement in connection with the                                                                                                             Refinancing of the Credit Agreement, in order to amend any defined terms or section references        (d)    If to any Grantor, to it at the address set forth in the Credit Agreement.                    contained herein to the Credit Agreement to the equivalent defined terms or sections references to                                                                                                             the  Refinanced  Credit  Agreement  or  to  the  Security  Agreements  or  any  replacement  Security        Any  party  hereto  may  change  its  address  or  telecopy  number  for  notices  and  other        Document  entered  into  in  connection  with  the  Refinanced  Credit  Agreement,  so  long  as  the  communications  hereunder  by  notice  to  the  other  parties  hereto.   All  notices  and  other         Borrower delivers to each party hereto a certificate of the Borrower stating that such amendment  communications given to any party hereto in accordance with the provisions of this Agreement               is permitted by the terms of each then extant Secured Credit Document.  shall be deemed to have been given on the date of receipt (if a Business Day) and on the next  Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or                SECTION 6.03      Parties in Interest.  This Agreement shall be binding upon and inure  sent by telecopy or on the date five Business Days after dispatch by certified or registered mail if       to the benefit of the parties hereto and their respective successors and assigns, as well as the other  mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in           Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of,  this Section 6.01 or in accordance with the latest unrevoked direction from such party given in            this Agreement.  accordance with this Section 6.01.  As agreed to in writing among the Controlling Collateral Agent  and each Authorized Representative from time to time, notices and other communications may                       SECTION 6.04      Effectiveness, Survival of Agreement, Severability. This Agreement  also be delivered by e-mail to the e-mail address of a representative of the applicable person             shall  become  effective  when  executed  and  delivered  by  the  parties  hereto.    All  covenants,  provided from time to time by such person.                                                                 agreements,  representations  and  warranties  made  by  any  party  in  this  Agreement  shall  be                                                                                                             considered to have been relied upon by the other parties hereto and shall survive the execution and        SECTION 6.02       Waivers; Amendment; Joinder Agreements.  (a) No failure or delay                  delivery of this Agreement. The terms of this Agreement shall survive, and shall continue in full  on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver       force and effect, in any Insolvency or Liquidation Proceeding.  Any provision of this Agreement  thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or        that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective  discontinuance of steps to enforce such a right or power, preclude any other or further exercise           to the extent of such prohibition or unenforceability without invalidating the remaining provisions  thereof or the exercise of any other right or power.  The rights and remedies of the parties hereto        hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or  are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No         render unenforceable such provision in any other jurisdiction.  waiver of any provision of this Agreement or consent to any departure by any party therefrom shall  in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and               SECTION 6.05      Counterparts.   This  Agreement  may  be  executed  in  counterparts,  then such waiver or consent shall be effective only in the specific instance and for the purpose for       each of which shall constitute an original but all of which when taken together shall constitute a  which given.  No notice or demand on any party hereto in any case shall entitle such party to any          single contract.  Delivery of an executed signature page to this Agreement by facsimile or other  other or further notice or demand in similar or other circumstances.                                       electronic transmission shall be as effective as delivery of a manually signed counterpart of this                                                                                                             Agreement.        (b)    Neither  this  Agreement  nor  any  provision  hereof  may  be  terminated,  waived,  amended or modified (other than the provision of security for one or more additional Series as                   SECTION 6.06      Severability.  Any provision of this Agreement held to be invalid,  provided for herein) except pursuant to an agreement or agreements in writing entered into by each         illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent  Authorized  Representative  and  each  Collateral  Agent  (provided  that   respect  to  any  such         of  such  invalidity,  illegality  or  unenforceability  without  affecting  the  validity,  legality  and  termination, waiver, amendment or modification which by the terms of this Agreement expressly              enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a                                                                                                             particular jurisdiction shall not invalidate such provision in any other jurisdiction.  The parties  modification increases the obligations or reduces the rights of, imposes additional duties on, any         shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions  Investor, the Borrower or any Grantor, the consent of the Borrower, such Grantor or such Investor          with valid provisions the economic effect of which comes as close as possible to that of the invalid,  shall be required).                                                                                        illegal or unenforceable provisions.         (c)    Notwithstanding  the  foregoing,  without  the  consent  of  any  other  Authorized                 SECTION 6.07      Governing Law; Jurisdiction.  This Agreement shall be construed in  Representative or Secured Party, any Authorized Representative may become a party hereto by                accordance with and governed by the law of the State of New York.  execution and delivery of a Joinder Agreement in accordance with Section 6.13 and upon such  execution and delivery, such Authorized Representative and the Additional Secured Parties and                    SECTION 6.08      Submission to Jurisdiction Waivers; Consent to Service of Process.   Additional Obligations of the Series for which such Authorized Representative is acting shall              Each Collateral Agent and each Authorized Representative, on behalf of itself and the Secured  thereupon become subject to and bound by the terms and conditions hereof and the terms and                 Parties of the Series for whom it is acting, irrevocably and unconditionally:  conditions of the Additional Security Documents applicable thereto.                                          24                                                                                                         25  77660844_6                                                                                                 77660844_6 





 






                                                                                                                    (a)    submits for itself and its property in any legal action or proceeding relating to this              SECTION 6.13      Additional  Senior  Debt.   To  the  extent,  but  only  to  the  extent  Agreement and the Security Documents, or for recognition and enforcement of any judgment in                permitted by the provisions of the Credit Agreement and the Additional Agreements, the Borrower  respect thereof, to the exclusive general jurisdiction of the courts of the State of New York, and         may incur additional indebtedness after the date hereof that is permitted by the Credit Agreement  the courts of the United States of America for the Southern District of New York, in each case             and the Additional Agreements to be incurred and secured on an equal and ratable basis by the  located in the Borough of Manhattan, and appellate courts from any thereof;                                                                                      Additional Senior Class Debt                                                                                                            Any such Additional Senior Class Debt may be secured by a Lien and may be Guaranteed by the        (b)    consents that any such action or proceeding may be brought in such courts and                 Grantors on a senior basis, in each case under and pursuant to the Additional Agreements, if and  waives  any  objection  that  it  may  now  or  hereafter  have  to  the  venue  of  any  such  action  or subject to the condition that the Authorized Representative for the holders of any such Additional  proceeding in any such court or that such action or proceeding was brought in an inconvenient                                       Additional Senior Class Debt Representative court and agrees not to plead or claim the same;                                                                                                                       Additional Senior Class                                                                                                             Debt Collateral Agent       (c)    agrees that service of process in any such action or proceeding may be effected by            Debt and t                                                  Additional Senior Class  mailing a copy thereof by registered or certified mail (or any substantially similar form of mail),        Debt Parties postage prepaid, to such Person (or its Authorized Representative) at the address referred to in           become a party to this Agreement by satisfying the conditions set forth in clauses (a) through (d)  Section 6.01;                                                                                              of the immediately succeeding paragraph.         (d)    agrees that nothing herein shall affect the right of any other party hereto (or any                 In order for an Additional Senior Class Debt Representative and Additional Senior Class  Secured Party) to effect service of process in any other manner permitted by law or shall limit the        Debt Collateral Agent to become a party to this Agreement,  right of any party hereto (or any Secured Party) to sue in any other jurisdiction; and                                                                                                                   (a)   such  Additional  Senior  Class  Debt  Representative  and  Additional  Senior  Class        (e)    waives, to the maximum extent not prohibited by law, any right it may have to claim           Debt Collateral Agent, each Collateral Agent, each Authorized Representative and each Grantor  or recover in any legal action or proceeding referred to in this Section 6.08 any special, exemplary,      shall have executed and delivered a Joinder Agreement pursuant to which such Additional Senior  punitive or consequential damages.                                                                         Class  Debt  Representative  becomes an  Authorized  Representative  hereunder,  such  Additional                                                                                                             Senior Class Debt Collateral Agent becomes a Collateral Agent hereunder and the Additional        SECTION 6.09       WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY                                   Senior Class Debt in respect of which such Additional Senior Class Debt Representative is the  IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL                                          Authorized  Representative  and  such  Additional  Senior  Class  Debt  Collateral  Agent  is  the  ACTION  OR  PROCEEDING  RELATING  TO  THIS  AGREEMENT  AND  FOR  ANY                                       Collateral Agent and the related Additional Senior Class Debt Parties become subject hereto and  COUNTERCLAIM THEREIN.                                                                                      bound hereby;         SECTION 6.10       Headings.   Article  and  Section  headings  used  herein  are  for                     (b)   the Borrower shall have (i) delivered to each Collateral Agent true and complete  convenience of reference only, are not part of this Agreement and are not to affect the construction       copies  of  each  of  the  Additional  Agreements  relating  to  such  Additional  Senior  Class  Debt,  of, or to be taken into consideration in interpreting, this Agreement.                                     certified as being true and correct by an Authorized Officer of the Borrower and ii) identified in a                                                                                                             certificate of an authorized officer the obligations to be designated as Additional Obligations and        SECTION 6.11       Conflicts.  In the event of any conflict or inconsistency between the                                                                                                             the initial aggregate principal amount or face amount thereof;  provisions of this Agreement and the provisions of any of the other Secured Credit Documents or  Security Documents, the provisions of this Agreement shall control.                                              (c)   all  filings,  recordations  and/or  amendments  or  supplements  to  the  Security                                                                                                             Documents necessary or desirable in the reasonable judgment of such Additional Senior Class        SECTION 6.12       Provisions Solely To Define Relative Rights.  The provisions of this                                                                                                             Debt Representative to create and perfect the Liens securing the relevant obligations relating to  Agreement are and are intended solely for the purpose of defining the relative rights of the Secured                                                                                                             such  Additional  Senior  Class  Debt  shall  have  been  made,  executed  and/or  delivered  (or,  with  Parties in relation to one another.  None of the Borrower, any other Grantor or any other creditor                                                                                                             respect  to  any  such  filings  or  recordations,  acceptable  provisions  to  perform  such  filings  or  thereof  shall  have  any  rights  or  obligations  hereunder,  except  as  expressly  provided  in  this                                                                                                             recordations shall have been taken in the reasonable judgment of such Additional Senior Class  Agreement (provided that nothing in this Agreement (other than Sections 2.04, 2.05, 2.08, 2.09 or                                                                                                             Debt Representative), and all fees and taxes in connection therewith shall have been paid (or  Article VI) is intended to or will amend, waive or otherwise modify the provisions of the Credit                                                                                                             acceptable provisions to make such payments have been taken in the reasonable judgment of such  Agreement or any Additional Agreements), and none of the Borrower or any other Grantor may                                                                                                             Additional Senior Class Debt Representative); and  rely on the terms hereof (other than Sections 2.04, 2.05, 2.08, 2.09 and Article VI).  Nothing in  this Agreement is intended to or shall impair the obligations of any Grantor, which are absolute                 (d)   the Additional Agreements, as applicable, relating to such Additional Senior Class  and unconditional, to pay the Obligations as and when the same shall become due and payable in             Debt  shall  provide,  in  a  manner  reasonably  satisfactory  to  each  Collateral  Agent,  that  each  accordance with their terms.                                          26                                                                                                         27  77660844_6                                                                                                 77660844_6 





 






   Additional Senior Class Debt Party with respect to such Additional Senior Class Debt will be  subject to and bound by the provisions of this Agreement in its capacity as a holder of such  Additional Senior Class Debt.         SECTION 6.14       Integration.  This Agreement together with the other Secured Credit  Documents and the Security Documents represents the agreement of each of the Grantors and the  Secured Parties with respect to the subject matter hereof and there are no promises, undertakings,  representations or warranties by any Grantor, any Collateral Agent or any other Secured Party  relative to the subject matter hereof not expressly set forth or referred to herein or in the other  Secured  Credit  Documents  or  the  Security  Documents.  Without  limiting  the  foregoing,  in  connection with their performance of their rights and obligations under this Agreement, the Credit  Agreement  Collateral  Agent  and  the  Initial  Additional  Collateral  Agent  are  entitled  to  their  respective  rights,  privileges,  protections,  immunities  and  indemnities  set  forth  in  the  Credit  Agreement,  in  the  case  of  the  Credit  Agreement  Collateral  Agent  or  the  Initial  Additional  Agreement, in the case of the Initial Additional Collateral Agent, which are hereby incorporated  by reference, mutatis mutandis, as if fully set out in this Agreement.         SECTION 6.15       Attorney in Fact.     Each  Grantor  and  each  Investor  hereby  appoints  the  Controlling  Collateral  Agent  and/or  the   and coupled with an interest (but shall terminate upon the termination of this Agreement or if such  Grantor or  Investor ceases to be a Grantor or  Investor) to, after the occurrence and during the  continuance of an Acceleration Event, to execute such releases and transfers as may be required  to consummate the actions contemplated by Section 2.04, including endorsements and instruments  of transfer or release.                                 [Signature Pages Follow]                                           28  77660844_6 





 












 












 






                                                                                                                                                  ANNEX I                                                                      IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the                                                                                                             date first written above.                         FORM OF CONSENT OF GRANTOR                                                                                                                                                  BIDFAIR MERGERIGHT INC.        Dated: [          ], [  ]         Reference is made to the Equal Priority Intercreditor Agreement dated as of October 2,                                                    By:   ______________________________  2019  between  DEUTSCHE  BANK  TRUST  COMPANY  AMERICAS,  as  Credit  Agreement                                                                       Name:  Collateral  Agent,  BNP  PARIBAS,  as  Credit  Agreement  Administrative  Agent,  DEUTSCHE                                                            Title:  BANK TRUST COMPANY AMERICAS, as the Initial Additional Authorized Representative and  DEUTSCHE BANK TRUST COMPANY AMERICAS, as the Initial Additional Collateral Agent,                                                               BIDFAIR HOLDINGS INC.  as the same may be amended, restated, supplemented or otherwise modified from time to time (the   Equal Priority  Intercreditor Agreement                                                                                                                                                 By:   ______________________________  have the meanings assigned to such terms in the Equal Priority Intercreditor Agreement.                                                                                                                                                        Name:        The undersigned Grantors have read the foregoing Equal Priority Intercreditor Agreement                                                         Title:  and consent and agree to the provisions thereof.  Each of the undersigned Grantors agrees not to                                                                                                                                                    take any action that would be contrary to the express provisions of the foregoing Equal Priority  Intercreditor Agreement, agrees to abide by the requirements expressly applicable to it under the                                               [EACH OTHER GRANTOR]  foregoing Equal Priority Intercreditor Agreement and agrees that, except as otherwise provided  therein, no Secured Party shall have any liability to any Grantor for acting in accordance with the  provisions of the foregoing Equal Priority Intercreditor Agreement.  Each Grantor understands that                                              By:   ______________________________  the foregoing Equal Priority Intercreditor Agreement is for the sole benefit of the Secured Parties                                                   Name:  and their respective successors and assigns, and that such Grantor is not an intended beneficiary                                                     Title:  or third party beneficiary thereof except to the extent otherwise expressly provided therein.         Without limitation to the foregoing, each Grantor agrees to take such further action and to  execute and deliver such additional documents and instruments (in recordable form, if requested)  as the Collateral Agent may reasonably request to effectuate the terms of and the Lien priorities  contemplated by the Equal Priority Intercreditor Agreement.         This Consent shall be governed and construed in accordance with the laws of the State of  New  York.   Notices  delivered  to  any  Grantor pursuant  to  this  Consent  shall  be delivered  in  accordance with the notice provisions set forth in the Equal Priority Intercreditor Agreement.                                        Annex I - 1                                                                       Signature Page to Annex I of Equal Priority Intercreditor Agreement  77660844_6                                                                                                 77660844_6 





 






                                                                                                                                                  ANNEX II                                                               and bound by, the Equal Priority Intercreditor Agreement with the same force and effect as if the                                                                                                             New Representative had originally been named therein as an Authorized Representative and the                                 FORM OF JOINDER                                                             New Collateral Agent had originally been named therein as a Collateral Agent, and each of the                                                                                                             New Representative and the New Collateral Agent, on its behalf and on behalf of such Additional        [FORM OF] JOINDER NO. [          ] dated as of [          ], 20[  Joinder Agreement                  Senior Class Debt Parties, hereby agrees to all the terms and provisions of the Equal Priority  to the EQUAL PRIORITY INTERCREDITOR AGREEMENT dated as of October 2, 2019 (as                              Intercreditor  Agreement  applicable  to  it  as Authorized  Representative  or  Collateral  Agent,  as  amended, amended and restated, supplemented or otherwise modified form time to time and in                 applicable, and to the Additional Senior Class Debt Parties that it represents as Additional Secured                             Equal  Priority  Intercreditor  Agreement DEUTSCHE                                                         Authorized  Representative                   ercreditor  BANK  TRUST  COMPANY  AMERICAS,  as  Credit  Agreement  Collateral  Agent,  BNP                                                                                                    Collateral  PARIBAS, as Credit Agreement Administrative Agent, DEUTSCHE BANK TRUST COMPANY                             Agent AMERICAS,  as  the  Initial  Additional  Authorized  Representative  and  DEUTSCHE  BANK                   Collateral Agent.  The Equal Priority Intercreditor Agreement is hereby incorporated herein by  TRUST COMPANY AMERICAS, as the Initial Additional Collateral Agent, and each additional                    reference.  Authorized Representative and each additional Collateral Agent from time to time a party thereto.1                                                                                                                   SECTION 2.  Each of the New Representative and the New Collateral Agent represents        A.     Capitalized  terms  used  herein  but  not  otherwise  defined  herein  shall  have  the      and warrants to each Collateral Agent, each Authorized Representative and the other Secured  meanings assigned to such terms in the Equal Priority Intercreditor Agreement.                             Parties, individually, that (i) it has full power and authority to enter into this Joinder Agreement,                                                                                                             in  its  capacity  as  [trustee/administrative  agent/collateral  agent]  under  [describe  new  facility],        B.     As a condition to the ability of the Borrower to incur Additional Obligations and to          (ii) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes  secure such Additional Senior Class Debt with the liens and security interests created by the              its legal, valid and binding obligation, enforceable against it in accordance with its terms and  Additional Security Documents, the Additional Senior Class Debt Representative in respect of               (iii) the Additional Agreements relating to such Additional Senior Class Debt provide that, upon  such  Additional  Senior  Class  Debt  is  required  to  become  an  Authorized  Representative,  the                                                                  ional Senior Class Debt  Additional Senior Class Debt Collateral Agent in respect of such Additional Senior Class Debt is           Parties in  respect  of such  Additional Senior Class Debt will be subject  to  and bound  by the  required to become a Collateral Agent, and such Additional Senior Class Debt and the Additional            provisions of the Equal Priority Intercreditor Agreement as Additional Secured Parties.  Senior Class Debt Parties in respect thereof are required to become subject to and bound by, the  Equal Priority Intercreditor Agreement.  Section 6.13 of the Equal Priority Intercreditor Agreement              SECTION 3.  This Joinder Agreement may be executed in counterparts, each of which  provides  that  such  Additional  Senior  Class  Debt  Representative  may  become  an  Authorized         shall constitute an original, but all of which when taken together shall constitute a single contract.   Representative, such Additional Senior Class  Debt  Collateral  Agent may become a Collateral              This Joinder Agreement shall become effective when each Collateral Agent shall have received a  Agent, and such Additional Senior Class Debt and such Additional Senior Class Debt Parties may             counterpart of this Joinder Agreement that bears the signatures of the New Representative and the  become subject to and bound by the Equal Priority Intercreditor Agreement upon the execution               New Collateral Agent.  Delivery of an executed signature page to this Joinder Agreement by  and  delivery  by  the  Senior  Debt  Class  Representative  and  the  Additional  Senior  Debt  Class     facsimile transmission or other electronic transmission shall be effective as delivery of a manually  Collateral Agent of an instrument in the form of this Joinder Agreement and the satisfaction of the        signed counterpart of this Joinder Agreement.  other conditions set forth in Section 6.13 of the Equal Priority Intercreditor Agreement.  The                                                           New  Representative                                     SECTION 4.  Except as expressly supplemented hereby, the Equal Priority Intercreditor                                               New Collateral Agent                                          Agreement shall remain in full force and effect.  Joinder  Agreement  in  accordance  with  the  requirements  of  the  Equal  Priority  Intercreditor  Agreement and the Security Documents.                                                                            SECTION 5.  THIS   JOINDER     AGREEMENT      AND    THE   RIGHTS    AND                                                                                                             OBLIGATIONS  OF  THE  PARTIES  HEREUNDER  SHALL  BE  GOVERNED  BY,  AND        Accordingly,  each  Collateral  Agent,  each  Authorized  Representative  and  the  New              CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE  Representative agree as follows:                                                                           OF NEW YORK.         SECTION 1.   In  accordance  with  Section  6.13  of  the  Equal  Priority  Intercreditor                  SECTION 6.  In  case  any  one  or  more  of  the  provisions  contained  in  this  Joinder  Agreement, the New Representative by its signature below becomes an Authorized Representative              Agreement should be held invalid, illegal or unenforceable in any respect, no party hereto shall be  under, the New Collateral Agent by its signature below becomes a Collateral Agent under, and the           required to comply with such provision for so long as such provision is held to be invalid, illegal  related Additional Senior Class Debt and Additional Senior Class Debt Parties become subject to            or unenforceable, but the validity, legality and enforceability of the remaining provisions contained                                                                                                             herein and in the Equal Priority Intercreditor Agreement shall not  in  any way be affected or                                                                                                             impaired.  The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal  1 In the event of the Refinancing of any of the Credit Agreement Obligations, revise to reflect joinder by a new  Credit Agreement Collateral Agent.                                      Annex II - 1                                                                                               Annex II - 2  77660844_6                                                                                                 77660844_6 





 






                                                                                                              or unenforceable provisions with valid provisions the economic effect of which comes as close as                 IN  WITNESS  WHEREOF,  the  New  Representative  has  duly  executed  this  Joinder  possible to that of the invalid, illegal or unenforceable provisions.                                      Agreement to the Equal Priority Intercreditor Agreement as of the day and year first above written.         SECTION 7.   All communications and notices hereunder shall be in writing and given as                                                    [NAME OF NEW REPRESENTATIVE], as  provided in Section 6.01 of the Equal Priority Intercreditor Agreement.  All communications and                                                 [          ] for the holders of [          ],  notices hereunder to the New Representative or the New Collateral Agent shall be given to it at its  address set forth below its signature hereto.                                                                                                                                                  By:   ______________________________        SECTION 8.   The  Borrower  agrees  to  reimburse  each  Collateral  Agent  and  each                                                           Name:  Authorized  Representative  for  its  reasonable  out-of-pocket  expenses  in  connection  with  this                                                 Title:  Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel, in  each case as required by the applicable Secured Credit Documents.                                                                               Address for notices:                 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]                                                                                      ____________________________________                                                                                                                                                  ____________________________________                                                                                                                                                  attention of:  ________________________                                                                                                                                                  Telecopy:   ________________________                                                                                                                                                    [NAME OF NEW COLLATERAL AGENT], as                                                                                                                                                  [          ] for the holders of [          ],                                                                                                                                                   By:   ______________________________                                                                                                                                                        Name:                                                                                                                                                        Title:                                                                                                                                                   Address for notices:                                                                                                                                                   ____________________________________                                                                                                                                                  ____________________________________                                                                                                                                                  attention of:  ________________________                                                                                                                                                  Telecopy:   ________________________                                       Annex II - 3                                                                       Signature Page to Annex II of Equal Priority Intercreditor Agreement  77660844_6                                                                                                 77660844_6 





 






                                                                                                                                                   Acknowledged by:                                                                                         ANNEX III                                                                                                                                                                                            [          ], as Collateral Agent for the Credit                                                  FORM OF SUPPLEMENT                                       Agreement Secured Parties                                                                                                                   [FORM OF] SUPPLEMENT NO. [               Supplement                      ], 20[  ]                                                                                                             to the Equal Priority Intercreditor Agreement, dated as of October 2, 2019, (as amended, amended                                       By:   ______________________________                                  and restated, supplemented or otherwise modified form time to time and in effect on the date                                             Name:                                                                      Equal  Priority  Intercreditor  Agreement   DEUTSCHE  BANK  TRUST                                             Title:                                                          COMPANY  AMERICAS,  as  Credit  Agreement  Collateral  Agent,  BNP  PARIBAS,  as  Credit                                                                                                             Agreement Administrative Agent, DEUTSCHE BANK TRUST COMPANY AMERICAS, as the                                       [          ], as Authorized Representative for the                    Initial  Additional  Authorized  Representative  and  DEUTSCHE  BANK  TRUST  COMPANY                                       Credit Agreement Secured Parties                                      AMERICAS, as the Initial Additional Collateral Agent, each Grantor party thereto, each Investor                                                                                                             party thereto and each Additional Authorized Representative that from time to time becomes a                                       By:   ______________________________                                                                                                             party thereto.                                       Name:                                       Title:                                                                      A.    Capitalized  terms  used  herein  but  not  otherwise  defined  herein  shall  have  the                                                                                                             meanings assigned to such terms in the Equal Priority Intercreditor Agreement.                                       [          ], as the Initial Additional Authorized                                       Representative                                                              B.    Pursuant to the Credit Agreement, the Initial Additional Agreement, certain Credit                                                                                                             Agreement  Security  Documents  and  certain  Initial  Additional  Security  Documents,  certain                                       By:   ______________________________                                  Investors  may  enter  into  the  Equal  Priority  Intercreditor  Agreement.   The  Equal  Priority                                             Name:                                                           Intercreditor Agreement provides that any such Investor may become party to the Equal Priority                                             Title:                                                          Intercreditor Agreement by execution and delivery of an instrument in the form of this Supplement.                                                                                                                                        New Investor           g this Supplement in accordance with                                       [          ], as the Initial Additional Collateral Agent              the requirements of the Credit Agreement, the Initial Additional Agreement, Credit Agreement                                                                                                             Security Documents and Initial Additional Security Documents.                                        By:   ______________________________                                        Accordingly, the Applicable Authorized Representative and the New  Investor agree as                                             Name:                                                           follows:                                             Title:                                                                                                                   SECTION 1.  In  accordance  with  the  Equal  Priority  Intercreditor  Agreement,  the New                                                                                                             Investor  by  its  signature  below  becomes  an  Investor  under  the  Equal  Priority  Intercreditor                                                                                                             Agreement with the same force and effect as if originally named therein as an Investor, and the                                                                                                             New Investor hereby agrees to all the terms and provisions of the Equal Priority Intercreditor                                                                                                              Priority Intercreditor Agreement shall be deemed to include the New Investor.  The Equal Priority                                                                                                             Intercreditor Agreement is hereby incorporated herein by reference.                                                                                                                    SECTION 2.  The  New  Investor  represents  and  warrants  to  the  Applicable  Authorized                                                                                                             Representative  and  the  other  Secured  Parties  that  this  Supplement  has  been  duly  authorized,                                                                                                             executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable                                                                                                             against it in accordance with its terms.                                                                                                                    SECTION 3.  This  Supplement  may  be  executed  in  counterparts,  each  of  which  shall                                                                                                             constitute an original, but all of which when taken together shall constitute a single contract.  This                                                                                                             Supplement shall  become  effective when the  Applicable  Authorized  Representative  shall  have                                                                                                             received a counterpart of this Supplement that bears the signature of the New Investor.  Delivery               Signature Page to Annex II of Equal Priority Intercreditor Agreement                                                             Annex III - 1  77660844_6                                                                                                 77660844_6 





 






                                                                                                              of an executed signature page to this Supplement by facsimile transmission or other electronic                   IN  WITNESS  WHEREOF,  the  New  Investor  and  the  Applicable  Authorized  method shall be as effective as delivery of a manually signed counterpart of this Supplement.              Representative have duly executed this Supplement to the Equal Priority Intercreditor Agreement                                                                                                             as of the day and year first above written.        SECTION 4.   THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED  IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.                                                                                          [NAME OF NEW INVESTOR],         SECTION 5.   In case any one or more of the provisions contained in this Supplement  should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to                                           By:   ______________________________  comply  with  such  provision  for  so  long  as  such  provision  is  held  to  be  invalid,  illegal  or                                            Name:  unenforceable, but the validity, legality and enforceability of the remaining provisions contained                                                    Title:  herein  and  in  the  Equal  Priority  Intercreditor  Agreement  shall  not  in  any  way  be  affected  or  impaired.  The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal                                         Address for notices:  or unenforceable provisions with valid provisions the economic effect of which comes as close as  possible to that of the invalid, illegal or unenforceable provisions.                                                                           ____________________________________                                                                                                                                                  ____________________________________        SECTION 6.   All communications and notices hereunder shall be given to it at the address  set forth below its signature hereto as provided in Section 6.01 of the Equal Priority Intercreditor                                            attention of:  ________________________  Agreement. All communications and notices hereunder to the New Investor shall be given to it at                                                 Telecopy:   ________________________  its address set forth below its signature hereto.         SECTION 7.   The  Borrower  agrees  to  reimburse  the  Applicable  Authorized  Representative  for  its  fees and expenses  incurred  in accordance  with  the terms of the  relevant                                                                                                                                                  [          ], as Applicable Authorized Representative  Security Documents.                             [SIGNATURE PAGES FOLLOW]                                                                                              By:   ______________________________                                                                                                                                                        Name:                                                                                                                                                        Title:                                                                                                                                                           Annex III - 2                                                                      Signature Page to Annex III of Equal Priority Intercreditor Agreement  77660844_6                                                                                                 77660844_6 





 






                                                                                                                                                                                       Exhibit E                                                                                      laware  corporation  (the                                                              to the Credit Agreement                                                              Company                                                                                                                                                              Borrower                                                                                                                                                 to time parties thereto, the Administrative Agent for     FORM OF AFFILIATED LENDER/BORROWER ASSIGNMENT AND ACCEPTANCE                                                                                 the  Lenders  and  Deutsche  Bank  Trust  Company                                                                                                                                                  Americas, as Collateral Agent.               This  Affiliated  Lender/Borrower  Assignment  and  Acceptance  Agreement  (the   Assignment                                                                                                      6.    Assigned Interest:  between  [Insert  name  of  Assignor  Assignor       Insert  name  of  Assignee]  (the   Assignee                                                                                                                them  in  the  Credit  Agreement  identified  below  (as  amended,  supplemented  or  otherwise                                Credit  Agreement                                                                                    Aggregate Amount                          Percentage  acknowledged  by  the  Assignee.  The  Standard  Terms  and  Conditions  set  forth  in  Annex 1                                          of             Amount of           Assigned of  attached hereto are hereby agreed to and incorporated herein by reference and made a part of this                    Tranche of   Loans/Commitment   Loans/Commitments   Loans/Commitments Assignment as if set forth herein in full.                                                                             Loan         s for all Lenders     Assigned               28                                                                                                                     $___________     _____________     $_______________              For an agreed consideration, the Assignor hereby irrevocably sells and assigns to                                                                                                                           _                                   _          ________________%  the  Assignee,  and the  Assignee  hereby  irrevocably  purchases  and  assumes  from  the  Assignor,  subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement,                as of the Effective Date inserted by the Administrative Agent as contemplated below, the interest                                                                                                                      nt and any other                                                                      documents or instruments delivered pursuant thereto that represents the amount and percentage                    7.    Additional Representations and Covenants of Assignee:                                                                                                                                                                             Assigned Interest to the Assignor and, except as expressly provided in this Assignment, without representation or                                                 [If Assignee is an Affiliated Lender,] Assignee  warranty by the Assignor.                                                                                                                       represents  and warrants  that  (a)  it  is  an  Affiliated                                                                                                                                                  Lender;  and  (b)  to  the  best  of  such  Affiliated        1.     Assignor:               ______________________________                                                                                                                                                  Effective  Date,  after  giving  effect  to  this        2.     Assignee:               ______________________________  is  an  Eligible                                                           Assignment, the aggregate principal amount of the                                       Assignee  [and  a[n]  [Lender/Affiliate  of  a                                                             Term Loans held by all Affiliated Lenders does not                                       Lender/Related Fund]].26                                                                                   exceed  30%  of  the  total  Commitments  and  Loans                                                                                                                                                  outstanding.  By  executing  this  Assignment,  each        3.     Borrower:                                       27                                                                                 Affiliated  Lender agrees  to  be  bound  by  the  terms                                                                                                                                                  of Section 9.04(l) of the Credit Agreement.         4.     Administrative Agent:   BNP Paribas, (the Administrative  Agent )  under                                       the Credit Agreement.                                                                      5.     Credit Agreement:       Credit Agreement dated as of October 2, 2019 (as                                                                         amended, modified, supplemented or restated from                                                         Credit  Agreement                                                                                      BidFair  MergeRight  Inc.,  a  Delaware  corporation                                       (which on the Closing Date shall be merged with,                                            [Remainder of page intentionally left blank]                                                                                                                                                                26    Select as applicable.                                                                                28    Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.  27    Select as applicable.                                                                                                                                                                                                                                                                                                                                                    77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                               Effective  Date:  _____________  ___,  20___  [TO  BE  INSERTED  BY  ADMINISTRATIVE                           Name:  AGENT  AND  WHICH  SHALL  BE  THE  EFFECTIVE  DATE  OF  RECORDATION  OF                                       Title:]  TRANSFER IN THE REGISTER THEREFOR.]                                                                                                                                                                                     By:                                           The terms set forth in this Assignment are hereby agreed to:                                     Name:                                                                                                                Title:]32                                          ASSIGNOR:                                                                                                                                              [NAME OF ASSIGNOR]                                                                                    By:                                                                Name:                                             Title:                                                                                    ASSIGNEE:                                                                                    [NAME OF ASSIGNEE]                                                                                    By:                                                                Name:                                             Title:  Consented to and Accepted:  [BNP Paribas,  as Administrative Agent [and][,] [L/C Issuer] [and] [Swing Line Lender]    By:                                 Name:     Title:]29    [Goldman Sachs Bank USA, as L/C Issuer]    By:                                 Name:        Title:]30    [Consented to:                          31      By:                                                                                29    If required pursuant to Section 9.04(b) of the Credit Agreement.  30       If required pursuant to Section 9.04(b) of the Credit Agreement.                                                                                       31    Include if assignment is executed in connection with the Revolving Commitment and after the appointment  of the Subsidiary Revolver Borrower.                                                                       32    If required pursuant to Section 9.04(b) of the Credit Agreement.                                                                                                                                                                                                                                                                    77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                                                                                        Annex 1                           shall deem appropriate at the time, continue to make its own credit decisions in taking or not                                 to Affiliated Lender/Borrower Assignment and Acceptance                     taking action under the Credit Agreement and (ii) it will perform in accordance with their terms                                                                                                             all of the obligations which by the terms of the Credit Agreement are required to be performed                                      SOTHEBY S                                                              by it as a Lender; and (c) appoints and authorizes the Administrative Agent and the Collateral                                                                                                             Agent to take such action as agent on its behalf and to exercise such powers under the Credit                                                                                                             Agreement as are delegated to the Administrative Agent and the Collateral Agent, respectively,                                CREDIT AGREEMENT                                                             by the terms thereof, together with such powers as are reasonably incidental thereto.      STANDARD TERMS AND CONDITIONS FOR AFFILIATED LENDER/BORROWER                                                        2.    Payments.  From and after the Effective Date, Administrative Agent shall                    ASSIGNMENT AND ACCEPTANCE AGREEMENT                                                      make all payments in respect of the Assigned Interest (including payments of principal, interest,                                                                                                             fees and other amounts) to the Assignor for amounts which have accrued to but excluding the               1.    Representations and Warranties.                                                         Effective Date and to the Assignee for amounts which have accrued from and after the Effective                                                                                                             Date.               1.1   Assignor.  The Assignor (a) represents and warrants that (i) it is the legal  and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any                     3.    General Provisions.  This Assignment shall be binding upon, and inure to  lien, encumbrance or other adverse claim, (iii) its Commitment and the outstanding balances of             the benefit of, the parties hereto and their respective successors and assigns.  This Assignment  its Loans, without giving effect to assignments thereof that have not become effective, are as set         may be executed in any number of counterparts, which together shall constitute one instrument.   forth  in  this  Assignment  and  (iv) it  has  full  power  and  authority,  and  has  taken  all  action Delivery of an executed counterpart of a signature page of this Assignment by telecopy or other  necessary,  to  execute  and  deliver  this  Assignment  and  to  consummate  the  transactions            electronic transmission shall be effective as delivery of a manually executed counterpart of this  contemplated hereby; and (b) except as set forth in clause (a) above, makes no representation or           Assignment.   THIS  AGREEMENT  AND  THE  RIGHTS  AND  OBLIGATIONS  OF  THE  warranty  and  assumes  no  responsibility  with  respect  to  (i) any  statements,  warranties  or        PARTIES  HEREUNDER  SHALL  BE  CONSTRUED  IN  ACCORDANCE  WITH  AND  representations made in or in connection with the Credit Agreement, (ii) the execution, legality,          GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.  validity,  enforceability,  genuineness,  sufficiency  or  value  of  the  Credit  Agreement,  any  other  Loan Document or any other instrument or document delivered pursuant thereto, other than this                                    [Remainder of page intentionally left blank]                                     Loan  Documents        the  financial  condition  of  Borrower or any of its Subsidiaries or (iv) the performance or observance by the Borrower or any  of its Subsidiaries of any of their respective obligations under any Loan Document or any other  instrument or document furnished pursuant thereto.                1.2   Assignee.   The  Assignee  (a) represents  and  warrants  that  (i) it  has  full  power and authority, and has taken all action necessary, to execute and deliver this Assignment  and  to  consummate the  transactions  contemplated  hereby  and  to  become  a  Lender  under the  Credit  Agreement,  (ii) it  meets  all  requirements  of  an  Eligible  Assignee  under  the  Credit  Agreement, (iii) it has received a copy of the Credit Agreement, together with copies of the most  recent  financial  statements  referred  to  in  Section 3.05(a)  thereof  or  delivered  pursuant  to  Section 4.10 of Annex 1 thereof, as applicable, and such other documents and information as it  has  deemed  appropriate  to  make  its  own  credit  analysis  and  decision  to  enter  into  this  Assignment and (iv) attached to this Assignment is any documentation required to be delivered  by  it  pursuant  to  the  terms  of  the  Credit  Agreement,  duly  completed  and  executed  by  the  Assignee,  including  to  the  extent  required  pursuant  to  Section 2.20(e)(ii)  of  the  Credit  Agreement, completed originals of IRS Forms W-8BEN/W-8BEN-E, W-8ECI, W-8IMY or W- 9, as may be applicable, together with any required attachments, if required to establish that such  Assignee  is  exempt  from  United  States  federal  or  backup  withholding  Taxes  (unless  such  Assignee is not subject to United States federal or backup withholding Taxes); (b) agrees that  (i) it  will,  independently  and  without  reliance  upon  the  Administrative  Agent,  the  Collateral  Agent, the Assignor or any other Lender, and based on such documents and information as it                                                                                                                                                                                                                                                                     77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                                                                                                                                                                                                                                                                           Execution Version                                                                          Exhibit F-1                                                              to the Credit Agreement                            FORM OF FACILITY GUARANTY   See attached.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     FACILITY GUARANTY                                                                                                                                           Dated as of October 2, 2019                                                                                                                                                by and among                                                                                                                                   THE GUARANTORS REFERRED TO HEREIN                                                                                                                                                    and                                                                                                                                               BNP PARIBAS,                                                                                                                                           as Administrative Agent                                                                                                                                                                                                                                                                                                                     77785246_6  EU-DOCS\26045402.3 





 






                                                                                                                                                                                                                                                                 Execution Version                                                                                         Execution Version                                 TABLE OF CONTENTS                                                                                         FACILITY GUARANTY                                                                              Page   SECTION 1.         Guaranty ...................................................................................................... 3 FACILITY GUARANTY Guaranty                                                                                                                                                  Parent Guarantor                        ts  SECTION 2.         Guaranteed Obligations Not Affected ........................................................ 4 own Obligations), the Subsidiary Revolver Borrower (except as to its own obligations) and each  SECTION 3.         Security ....................................................................................................... 4 of the Restricted Subsidiaries of the Borrower (other than the Subsidiary Revolver Borrower) listed  SECTION 4.         Guaranty of Payment .................................................................................. 4 on  the signature pages hereto  (each such  Person, individua Subsidiary  Guarantor                                                                                                                           Subsidiary Guarantors SECTION 5.         No Discharge or Diminishment of Guaranty .............................................. 5                                       Guarantors                BNP  Paribas,  as  SECTION 6.         Defenses of Loan Parties Waived ............................................................... 5 administrative agent (together with a        Administrative Agent                                                                                                            own  benefit  and  the  benefit  of  the  other  Secured  Parties,  (b) the  Secured  Parties  and  (c) the  SECTION 7.         Agreement to Pay; Subordination ............................................................... 5 Collateral Agent (on behalf of and  for the benefit  of the Administrative Agent and  the other  SECTION 8.         Limitation on Guaranty of Guaranteed Obligations ................................... 6  Secured Parties,  but solely in its role as  representative of the Secured Parties  in  holding and                                                                                                             enforcing the Collateral and the Security Documents).   SECTION 9.         Representations, Warranties and Covenants of the Guarantors .................. 8 SECTION 10.        Enforcement Expenses; Indemnification .................................................... 8                            W I T N E S E T H  SECTION 11.        Information ................................................................................................. 9 WHEREAS, reference is made to that certain Credit Agreement, dated as of October 2,  SECTION 12.        Termination; Release .................................................................................. 9 2019 (as                               Credit Agreement                                                                                                                                                      Merger Sub SECTION 13.        Binding Effect; Several Agreement; Assignments ................................... 10                                                         Company   , with the Company  SECTION 14.        Waivers; Amendment ............................................................................... 10               Borrower                               Lenders                                                                                                            Administrative Agent, the Collateral Agent and the other parties thereto. Capitalized terms used  SECTION 15.        Additional Guarantors ............................................................................... 11                                                                                                            herein  and  not  defined  herein  shall  have  the  meanings  assigned  to  such  terms  in  the  Credit  SECTION 16.        Keepwell ................................................................................................... 11 Agreement.   SECTION 17.        Copies and Facsimiles............................................................................... 11                                                                                                                  WHEREAS,  the  Lenders  have  agreed  to  make  loans  and  other  extensions  of  credit  SECTION 18.        Governing Law ......................................................................................... 12 Loans SECTION 19.        Notices ...................................................................................................... 12 conditions specified in, the Credit Agreement.  SECTION 20.        Survival of Agreement; Severability ........................................................ 12 WHEREAS, each Guarantor  acknowledges that  it  is an integral part  of a  consolidated  SECTION 21.        Counterparts .............................................................................................. 12 enterprise and that it will receive direct and indirect benefits from the availability of the credit                                                                                                             facilities provided for in the Credit Agreement and from the making of the Loans by the Lenders.  SECTION 22.        Rules of Interpretation .............................................................................. 12 SECTION 23.        Jurisdiction; Consent to Service of Process .............................................. 12 WHEREAS, the obligations of the Lenders to make Loans are conditioned upon, among                                                                                                             other things, the execution and delivery by the Guarantors of a guaranty in the form hereof.  As  SECTION 24.        Waiver of Jury Trial .................................................................................. 13 consideration therefor, and in order to  induce the Lenders to make  Loans, the Guarantors are  SECTION 25.        Judgment Currency ................................................................................... 14 willing to execute this Guaranty.                                                                                                                   Accordingly, each Guarantor hereby agrees as follows:                                                                                                                     SECTION 1.  Guaranty.   Each  Guarantor  irrevocably  and  unconditionally  guaranties,                                                                                                             jointly with the other Guarantors and severally, as a primary obligor and not merely as a surety, to                                                                                                             the Secured Parties, the Administrative Agent and to the Collateral Agent (on behalf of and for the                                                                                                             benefit  of  the  Administrative  Agent  and  the  other  Secured  Parties,  but  solely  in  its  role  as                                                                                                             representative of the Secured Parties in holding and enforcing the Collateral  and the Security                                                                                                             Documents) the due and punctual payment,  as its own and independent  obligation, when due                                                                                                             (whether  at  the  stated  maturity,  by  required  prepayment,  by  acceleration  or  otherwise)  and 





 






performance  by  the  Borrower  and  the  other  Guarantors  of  all  Obligations  (collectively,  the     Administrative  Agent  and  the  other  Secured  Parties,  in  the  manner  provided  in  the  Credit   Guaranteed Obligations                                                                                    Agreement and the Intercreditor Agreement (if applicable).  but for the operation of any Bankruptcy Law. Each Guarantor further agrees that, to the fullest  extent permitted by local laws, the Guaranteed Obligations may be extended or renewed, in whole                  SECTION 5.  No  Discharge  or  Diminishment  of  Guaranty.   The  obligations  of  each  or in part, or increased without notice to or further assent from it, and that it will remain bound        Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination  upon  this  Guaranty  notwithstanding  any  extension,  renewal  or  increase  of  any  Guaranteed         for any reason (other than the indefeasible payment in full in cash of the Guaranteed Obligations),  Obligation.                                                                                                including  any  claim  of  waiver,  release,  surrender,  alteration  or  compromise  of  any  of  the                                                                                                             Guaranteed  Obligations,  and  shall  not  be  subject  to  any  defense  or  set-off,  counterclaim,        SECTION 2.   Guaranteed Obligations Not Affected.  To the fullest extent permitted by                recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of  applicable Law, each Guarantor waives presentment to, demand of payment from, and protest to,              the Guaranteed Obligations or otherwise.  Without limiting the generality of the foregoing, the  any Loan Party of any of the Guaranteed Obligations, and also waives notice of acceptance of this          Guaranteed  Obligations  of  each  Guarantor  hereunder  shall  not  be  discharged  or  impaired  or  Guaranty, notice of protest for nonpayment and all other notices of any kind.  To the fullest extent       otherwise affected by the failure of the Collateral Agent, the Administrative Agent or any other  permitted by applicable Law, the obligations of each Guarantor hereunder shall not be affected by          Secured Party to assert any claim or demand or to enforce any remedy under this Guaranty, the  (a) the failure of the Collateral  Agent, the Administrative Agent or any  other Secured Party  to         Credit  Agreement,  any  other  Loan  Document  or  any  other  agreement,  by  any  waiver  or  assert any claim or demand or to enforce or exercise any right or remedy against any Loan Party            modification of any provision of any thereof, by any default, failure or delay, willful or otherwise,  under the provisions of the Credit Agreement, any other Loan Document or otherwise or against              in the performance of the Guaranteed Obligations, or by any other act or omission that may or  any other party with respect to any of the Guaranteed Obligations, (b) any rescission, waiver,             might in any manner or to any extent vary the risk of any Guarantor or that would otherwise operate  amendment or modification of, or any release from, any of the terms or provisions of this Guaranty,        as a discharge of any Guarantor as a matter of law or equity (other than the indefeasible payment  any other Loan Document or any other agreement, with respect to any Loan Party or with respect             in full in cash of the Guaranteed Obligations).  to the Guaranteed Obligations, (c) any renewal, extension or acceleration of, or any increase in the  amount  of  the  Guaranteed  Obligations,  (d) the  invalidity  or  unenforceability  of  the  Credit            SECTION 6.  Defenses  of  Loan  Parties  Waived.   To  the  fullest  extent  permitted  by  Agreement or any other Loan Documents, (e) the failure to perfect any security interest in, or the         applicable Law, each of the Guarantors waives any defense based on or arising out of any defense  release of, any of the Collateral held by or on behalf of the Collateral Agent, the Administrative         of any Loan Party or the unenforceability of the Guaranteed Obligations or any part thereof from  Agent or any other Secured Party or (f) the lack of legal existence of any Loan Party or legal             any  cause,  or  the  cessation  from  any  cause  of  the  liability  of  any  Loan  Party,  other  than  the  obligation to discharge any of the Guaranteed  Obligations by any  Loan Party for any reason               indefeasible  payment  in  full  in  cash  of  the  Guaranteed  Obligations.   Each  Guarantor  hereby  whatsoever, including, without limitation, in any insolvency, bankruptcy or reorganization of any          acknowledges that the Collateral Agent, the Administrative Agent and the other Secured Parties  Loan Party.                                                                                                may, at their election, foreclose on any security held by one or more of them by one or more                                                                                                             judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure,        SECTION 3.   Security.  Each of the Guarantors hereby acknowledges and agrees that the               compromise or adjust any  part of the Guaranteed Obligations, make any other accommodation  Collateral Agent and the Secured Parties may (a) take and hold security for the payment of this            with any Loan Party, or exercise any other right or remedy available to them against any Loan  Guaranty  and  the  Guaranteed  Obligations  and  exchange,  enforce,  waive  and  release  any  such      Party, without affecting or impairing in any way the liability of any Guarantor hereunder except  security, (b) apply such security and direct the order or manner of sale thereof as they in their sole     to the extent that the Guaranteed Obligations have been indefeasibly paid in full in cash.  Pursuant  discretion may determine and (c) release or substitute any one or more endorsees, the Borrower,            to, and to the extent permitted by, applicable Law, each of the Guarantors waives any defense  other Guarantors or other obligors, in each case without affecting or impairing in any way the             arising out of any such election  and waives any benefit of and right to participate in any such  liability of any Guarantor hereunder.                                                                      foreclosure action, even though such election operates, pursuant to applicable Law, to impair or to                                                                                                             extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor        SECTION 4.   Guaranty  of  Payment.   Each  of  the  Guarantors  further  agrees  that  this         against any Loan Party, as the case may be, or any security.  Each Guarantor agrees that it shall  Guaranty  constitutes  a  continuing  guaranty  of  payment  and  performance  when  due  of  all          not assert any claim in competition with the Collateral Agent, the Administrative Agent or any  Guaranteed Obligations and not of collection and, to the fullest extent permitted by applicable            other Secured Party in respect of any payment made hereunder in any bankruptcy, insolvency,  Law, waives any right to require that any resort be had by the Collateral Agent, the Administrative        reorganization or any other proceeding.  Agent or any other Secured Party to any of the Collateral or other security held for payment of the  Guaranteed Obligations or to any balance of any deposit account or credit on the books of the                    SECTION 7.  Agreement to Pay; Subordination.  In furtherance of the foregoing and not  Collateral Agent, the Administrative Agent or any other Secured Party in favor of any Loan Party           in limitation of any other right that the Collateral Agent, the Administrative Agent or any other  or any other Person or to any other guarantor of all or part of the Guaranteed Obligations.  Any           Secured Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of  payment required to be made by the Guarantors hereunder may be required by the Collateral Agent,           any Loan Party to pay any Guaranteed Obligation when and as the same shall become due, whether  Administrative Agent or any other Secured Party on any number of occasions and shall be payable            at maturity, by acceleration, after notice of prepayment or otherwise, each of the Guarantors hereby  to  the  Collateral  Agent  or  Administrative  Agent  (as  applicable),  for  the  benefit  of  the       promises to and will forthwith pay, or cause to be paid, to the Collateral Agent, the Administrative                                           4                                                                                                         5                                                                                                              





 






Agent  or  such  other  Secured  Party  as  designated thereby  in  cash the  amount  of such  unpaid                  (c)   Notwithstanding anything to the contrary contained in this Guaranty or any  Guaranteed Obligations.  Upon payment by any Guarantor of any sums to the Collateral Agent,                provision of any other Loan Document, if and to the extent, under the Commodity Exchange Act  the  Administrative  Agent  or  any  other  Secured  Party  as  provided  above,  all  rights  of  such    (7 U.S.C. § 1 et seq                                                  Commodity  Guarantor  against  any  Loan  Party  arising  as  a  result  thereof  by  way  of  right  of  subrogation, Exchange Act contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior             CFTC                                                           portion of the  in  right  of  payment  to  the  prior  indefeasible  payment  in  full  in  cash  of  all  the  Guaranteed guarantee  of  such  Guarantor  of,  or  the  grant  by  such Guarantor of  a  security  interest for, any  Obligations.   If  any  amount  shall  erroneously  be  paid  to  any  Guarantor  on  account  of  such                Swap Obligation subrogation, contribution, reimbursement, indemnity or similar right, such amount shall be held in                                                 e meaning of Section 1a(47) of the Commodity  trust for the benefit of the Secured Parties and shall forthwith be paid to the Collateral Agent or        Exchange Act (or the analogous term or Section in any amended or successor statute) is or becomes  Administrative  Agent  (as  applicable)  to  be  credited  against  the  payment  of  the  Guaranteed                Excluded Swap Obligation Obligations, whether matured or unmatured, in accordance with the terms of the Credit Agreement.           extend to or include any such Excluded Swap Obligation.  Any  right  of  subrogation  of  any  Guarantor  shall  be  enforceable  solely  after  the  indefeasible  payment in full in cash of all the Guaranteed Obligations and solely against the Guarantors and the                    (d)   U.K. Guarantee Limitations. In relation to any Guarantor incorporated in  Borrower, and not against the Secured Parties, and neither the Collateral Agent, the Administrative                                                                                    U.K.  Agent nor any other Secured Party shall have any duty whatsoever to warrant, ensure or protect             Guarantor                                     f this Guaranty, this Guaranty does not  any such right of subrogation or to obtain, perfect, maintain, hold, enforce or retain any collateral      apply to any liability to the extent that it would result in this Guaranty constituting unlawful  securing or purporting to secure any of the Guaranteed Obligations for any purpose related to any          financial assistance within the meaning of sections 678 or 679 of the Companies Act 2006.  such right of subrogation.                                                                                                                         (e)   H.K.  Guarantee  Limitations.  In  relation  to  any  Guarantor  incorporated        SECTION 8.   Limitation on Guaranty of Guaranteed Obligations.                                                                    H.K. Guarantor                                                                                                            this Guaranty, this Guaranty does not apply to any liability to the extent that it would result in this               (a)   In any action or proceeding with respect to any Guarantor involving any                 Guaranty  constituting  unlawful financial  assistance  within  the meaning  of section  275  of the  state corporate law, any Bankruptcy Law or any other state or federal bankruptcy, insolvency,              Companies Ordinance (Cap. 622 of the Laws of Hong Kong).   reorganization or other law affecting the rights of creditors generally, including, without limitation,  the Uniform Fraudulent Conveyance Act, Uniform Fraudulent Transfer Act or any similar foreign,                         (f)   Luxembourg  Guarantee  Limitations. In  relation  to  any  Guarantor  whose  federal or state law to the extent applicable to the guaranty set forth herein and the obligations of      registered  office/place  of  central  administration  is  in  Luxembourg  and  whose  centre  of  main  each Guarantor  hereunder,  if  the obligations of  such  Guarantor under  Section 1  hereof would         interest (as that term is used in Article 3(1) of Regulation (EU) of the Council and the European  otherwise be determined to be void, invalid or unenforceable, or subordinated to the claims of any         Parliament No. 2015/848 of 20 May 2015 on insolvency proceedings, recast, (the "Insolvency  other  creditors,  in  such  action  or  proceeding  on  account  of  the  amount  of  its  liability  under Regulation")  is  in  Luxembourg  (the  "Luxembourg  Guarantor")  (i)  notwithstanding  any  other  Section 1, then, notwithstanding any other provision hereof to the contrary, the amount of such            provision of this Guaranty, the aggregate obligations and exposure of the Luxembourg Guarantor  liability shall, without any further action by such Guarantor, any Lender, the Collateral Agent,           in respect of the obligations of a member of the Group (as defined in the Credit Agreement) which  Administrative Agent or any other Person, be automatically limited and reduced to the highest              is not a direct or indirect subsidiary of such Luxembourg Guarantor shall be limited at any time to  amount which is valid and enforceable and not subordinated to the claims of other creditors as             an aggregate amount not exceeding 90% of the greater of (i.i) an amount equal to the sum of the  determined in such action or proceeding.                                                                   Luxembourg Guarantor's Net Assets and its subordinated debt (dettes subordonnées), as reflected                                                                                                             in the financial information of the Luxembourg Guarantor available to the Lenders, including,               (b)   In  such  circumstances,  to  effectuate  the  foregoing,  the  amount  of  the         without limitation, its most recently and duly approved financial statements (comptes annuels) and  liability of each Guarantor hereunder shall be determined without taking into account any liabilities      any (unaudited) interim financial statements signed by its board of managers (gérants) and (i.ii)  under any other indebtedness of or guarantee by such Guarantor.  For purposes of the foregoing,            an amount equal to the sum of the Luxembourg Guarantor's Net Assets and its subordinated debt  all indebtedness and guarantees of such Guarantor other than the guarantee under Section 1 hereof          (dettes  subordonnées), as reflected in the financial information of the Luxembourg Guarantor  will be deemed to be enforceable and payable after the guarantee under Section 1.  To the fullest          available to the Lenders as at the date the guarantee is called, including, without limitation, its  extent permitted by applicable Law, this Section 8 shall be for the benefit solely of creditors and        most  recently  and  duly  approved  financial  statements  (comptes  annuels)  and  any  (unaudited)  representatives of creditors of each Guarantor and not for the benefit of such Guarantor or the            interim financial statements signed by its board of managers (gérants). For this purpose, "Net  holders of any equity interest in such Guarantor.  Each Guarantor agrees that Obligations may at           Assets"  shall  mean  all  the  assets  (actifs)  of  the  Luxembourg  Guarantor  minus  its  liabilities  any time and from time to time be incurred or permitted in an amount exceeding the maximum                 (provisions et dettes) as valued either (i) at the fair market value determined by an independent  liability  of  such  Guarantor  under  this  Section 8  without  impairing  the  guaranty  contained  in   third party appointed by the Lenders, or (ii) if no such market value has been determined, in  Section 1 hereof or affecting the rights and remedies of any Secured Party hereunder.                      accordance  with  Luxembourg  generally  accepted  accounting  principles  (Lux  GAAP)  or                                                                                                             International Financial Reporting Standards (IFRS), as applicable, and the relevant provisions of                                           6                                                                                                         7                                                                                                              





 






the Luxembourg Act of 19 December 2002 on the Register of Commerce and Companies, on                                   (c)   Each Guarantor agrees  that  the provisions of Section 2.20 of the Credit  accounting and on annual accounts of the companies, as amended; (ii) the limitation set forth at           Agreement are hereby incorporated herein by reference, mutatis mutandis, and each Secured Party  item (i) above shall not apply to any amounts borrowed under the Credit Agreement and made                 shall be entitled to rely on each of them as if they were fully set forth herein.  available, in any form whatsoever, to the Luxembourg Guarantor or any of its direct or indirect  subsidiaries.                                                                                                          (d)   The  agreements  in  this  Section 10  shall  survive  repayment  of  the                                                                                                             Guaranteed Obligations and all other amounts payable under the Credit Agreement and the other        SECTION 9.   Representations, Warranties and Covenants of the Guarantors                             Loan Documents.                (a)   Subject  to  Sections  2.22,  2.23  and  2.24  of  the  Credit  Agreement,  each              SECTION 11. Information.  Each of the Guarantors assumes all responsibility for being  Guarantor represents and warrants to the Secured Parties that on the date hereof and on the date of  each extension of credit under the Credit Agreement (other than the Initial Funding Date) (or, if          circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,  later, the date on which such Guarantor becomes a party to this Guaranty pursuant to Section 15            scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that  hereof), the representations and warranties set forth in Article III of the Credit Agreement and the       none of the Administrative Agent or the other Secured Parties will have any duty to advise any of  other Loan Documents to which such Guarantor is a party, each of which is incorporated herein              the Guarantors of information known to it or any of them regarding such circumstances or risks.  by  reference,  are  true  and  correct  in  all  material  respects  (or  in  all  respects  if  qualified  by  materiality or Material Adverse Effect), on and as of such date with the same effect as though                   SECTION 12. Termination; Release.  made on and as of such date, except to the extent such representations and warranties expressly  relate to an earlier date, in which case such representations and warranties shall be true and correct                 (a)   This Guaranty (i) shall terminate upon termination of the Commitments,  in all material respects (or in all respects if qualified by materiality or Material Adverse Effect),      payment  in  full  of  the  Guaranteed  Obligations  (other  than  (x)  contingent,  indemnification  on and as of such earlier date.                                                                            obligations  as  to  which  no  claim  has  been  asserted  and  (y)  obligations  and  liabilities  under                                                                                                             Treasury Services Agreements and Swap Contracts) and the expiration or termination of all Letters               (b)   Each Guarantor covenants and agrees with the Secured Parties that, from                 of Credit (other than Letters of Credit that are Cash Collateralized or back-stopped by a letter of  and after the date of this Guaranty (or, if later, the date such Guarantor becomes a party hereto          credit in form, amount and substance reasonably satisfactory to the applicable L/C Issuer or a  pursuant  to  Section 15  hereof)  until  the  payment  in  full  of  the  Guaranteed  Obligations,  such  deemed  reissuance  under  another  facility  as  to  which  other  arrangements  satisfactory  to  the  Guarantor will perform and observe, and cause each of its Subsidiaries to perform and observe, all         Administrative  Agent  and  the  L/C  Issuer  shall  have  been  made)  and  (ii) shall  continue  to  be  of the terms, representations, covenants and agreements set forth in the Loan Documents on its or          effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any  their part to be performed or observed or that the Borrower has agreed to cause such Guarantor or          Guaranteed Obligation is rescinded or must otherwise be restored by any Secured Party or any  such Subsidiaries to perform or observe.                                                                   Guarantor upon the bankruptcy or reorganization of any Loan Party or otherwise.         SECTION 10. Enforcement Expenses; Indemnification.                                                               (b)   A Guarantor shall be automatically released from its obligations under this                                                                                                             Guaranty:                (a)   Each  Guarantor  agrees  to  pay  or  reimburse  the  Collateral  Agent  and  Administrative Agent for all its costs and expenses incurred in collecting against such Guarantor                      (i) upon a sale or other disposition (including by way of consolidation, merger,  under the guarantee contained in Section 1 or otherwise enforcing or preserving any rights under                       amalgamation  or  combination)  of  the  Capital  Stock  of  the  relevant  Subsidiary  this Guaranty and the other Loan Documents to which such Guarantor is a party, including, without                      Guarantor (whether by direct sale or sale of a holding company of such Subsidiary  limitation,  the  fees  and  disbursements  of  counsel,  subject  to  the  limitations  set  forth  in                Guarantor) or the sale or disposition of all or substantially all the assets of any  Section 9.05(a) of the Credit Agreement.                                                                               Subsidiary Guarantor (other than to the Borrower or a Restricted Subsidiary), in                                                                                                                         each case if the sale or other disposition does not violate Section 4.08 in Annex I to               (b)   Each  Guarantor  agrees  to  pay,  and  to  hold  the  Collateral  Agent,  the                      the Credit Agreement;   Administrative Agent and all Secured Parties, and all Indemnitees pursuant to Section 9.05 of the  Credit Agreement, harmless from, any and all liabilities, obligations, losses, damages, penalties,                     (ii)  (A) upon  the  designation  in  accordance  with  the  Credit Agreement  of  that  actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with                      Subsidiary  Guarantor  as  an  Unrestricted  Subsidiary  or  (B)  if  such  Subsidiary  respect to the execution, delivery, enforcement, performance and administration of this Guaranty                       Guarantor  otherwise  becomes  an  Excluded  Subsidiary  (other  than  pursuant  to  to the extent the Borrower would be required to do so pursuant to Section 9.05 of the Credit                           clause (1) of the definition thereof);  Agreement.                                                                                                                         (iii) with respect to any Subsidiary Guarantor that is not the continuing or surviving                                                                                                                         Person in the relevant consolidation or merger, as a result of a transaction that                                                                                                                         complies with the provisions of Section 5.02 in Annex I to the Credit Agreement;                                            8                                                                                                         9                                                                                                              





 






             (iv) as described under Section 4.15 in Annex I to the Credit Agreement (other than                       (b)   Neither this Guaranty nor any provision hereof may be waived, amended or               pursuant to clause (1) of the definition of Excluded Subsidiary); or                          modified except pursuant to a written agreement entered into between the Administrative Agent                                                                                                             and a Guarantor or the Guarantors with respect to whom such waiver, amendment or modification               (v) as provided under Section 9.08 of the Credit Agreement; or                                is  to  apply,  subject  to  any  consent  required  in  accordance  with  Section 9.08  of  the  Credit                                                                                                             Agreement.               (vi) in the event of liquidation or dissolution of such Subsidiary Guarantor to the               extent such liquidation or dissolution does not violate the Credit Agreement.                       SECTION 15. Additional Guarantors.  Each Person that becomes a party to this Guaranty                                                                                                             shall become a Guarantor as defined in the Credit Agreement for all purposes of this Guaranty        SECTION 13. Binding  Effect;  Several  Agreement;  Assignments.   Whenever  in  this                 upon execution and delivery by such Person of a Joinder Agreement in the form of Annex I hereto.   Guaranty any of the parties hereto is referred to, such reference shall be deemed to include the           The obligations of a Guarantor executing and delivering a Joinder Agreement shall be subject to  successors and assigns of such party, and all covenants, promises and agreements by or on behalf           such limitations as are mandated under applicable laws in addition to the limitations set forth in  of the Guarantors that are contained in this Guaranty shall bind and inure to the benefit of each of       Section 8 and set out in the relevant Joinder Agreement.  the Guarantors and its respective successors and assigns.  This Guaranty shall be binding upon  each of the Guarantors and their respective successors and assigns, and shall inure to the benefit               SECTION 16. Keepwell.  Each  Qualified  ECP  Guarantor  hereby  jointly  and  severally  of the Administrative  Agent and the other Secured Parties, and their respective successors and            absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as  assigns, except that no Guarantor shall have the right to assign or transfer its rights or obligations     may be needed from time to time by each other Guarantor to honor all of its obligations under this  hereunder or any interest herein (and any such attempted assignment or transfer shall be void),            Guaranty in respect of Swap Obligations; provided, however, that each Qualified ECP Guarantor  except as expressly permitted by this Guaranty or the Credit Agreement.  This Guaranty shall be            shall only be liable under this Section 16 for the maximum amount of such liability that can be  construed as a separate agreement with respect to each Guarantor and may be amended, modified,             hereby incurred without rendering its obligations under this Section 16, or otherwise under this  supplemented, waived or released with respect to any Guarantor without the approval of any other           Guaranty, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer,  Guarantor and without affecting the obligations of any other Guarantor hereunder.                          and not for any  greater amount. The obligations of each Qualified ECP Guarantor under this                                                                                                             Section 16 shall remain in full force and effect until the Guaranteed Obligations are paid in full        SECTION 14. Waivers; Amendment.                                                                      (other than contingent, unasserted indemnification obligations and obligations and liabilities under                                                                                                             Treasury  Services  Agreements  and  Swap  Contracts  not  due  and  payable),  the  expiration  or               (a)   The  rights,  remedies,  powers,  privileges,  and  discretions  of  the                termination of all Letters of Credit (other than Letters of Credit that are Cash Collateralized or                                                                                                             back-stopped by a letter of credit in form, amount and substance reasonably satisfactory to the  Rights and Remedies                                                                                        applicable  L/C  Issuer) and the termination  of Commitments.  Each Qualified ECP Guarantor  would  otherwise  have.   No  delay  or  omission  by  the  Administrative  Agent  in  exercising  or      intends  that  this  Section 16  constitute,  and  this  Section 16  shall  be  deemed  to  constitute,  a   a waiver thereof.  No waiver by the Administrative Agent of any Event of Default or of any default         Section  1a(18)(A)(v)(II)  of  the  Commodity  Exchange  Act.  For  purposes  of  this  Guaranty,  a  under any other agreement shall operate as a waiver of any other default hereunder or under any                                                                                                             has total assets exceeding $10,000,000 at the time its guarantee thereof becomes effective with  Remedies, and no express or implied agreement or transaction of whatever nature entered into               respect to such Swap Obl between the Administrative Agent and any Person, at any time, shall preclude the other or further                                                                                                                                                                                       ntering                                                                 one occasion shall be                       into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.  deemed a waiver on any subsequent occasion, nor shall it be deemed a continuing waiver.  The                                                                                                                   SECTION 17. Copies and Facsimiles.  This instrument and all documents which have been  order  of  preference  as  the  Administrative  Agen                                                       or may be hereinafter furnished by the Guarantors to the Administrative Agent may be reproduced  Rights and Remedies may be exercised without resort or regard to any other source of satisfaction          by the Administrative Agent by any photographic, microfilm, xerographic, digital imaging, or  of the Guaranteed Obligations.  No waiver of any provisions of this Guaranty or any other Loan             other process.  Any such reproduction shall be admissible in evidence as the original itself in any  Document or consent to any departure by any Guarantor therefrom shall in any event be effective            judicial or administrative proceeding (whether or not the original is in existence and whether or  unless the same shall be permitted by SECTION 14(B) hereof, and then such waiver or consent                not  such  reproduction  was  made  in  the  regular course  of  business).   Any  facsimile  or  other  shall be effective only in the specific instance and for the purpose for which given.  No notice to        electronic transmission which bears proof of transmission shall be binding on the party which or  or demand on any Guarantor in any case shall entitle such Guarantor or any other Guarantor to any          on whose behalf such transmission was initiated and likewise so admissible in evidence as if the  other or further notice or demand in the same, similar or other circumstances.                             original of such facsimile or other electronic transmission had been delivered to the party which                                                                                                             or on whose behalf such transmission was received.                                          10                                                                                                         11                                                                                                              





 






      SECTION 18. Governing  Law.   THIS  GUARANTY  AND  ANY  CLAIM,                                       Party in respect of rights under any Security Document governed by any law other than New York  CONTROVERSY,  DISPUTE  OR  CAUSE  OF  ACTION  (WHETHER  SOUNDING  IN                                       law or with respect to any Collateral subject thereto), or for recognition or enforcement of any  CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING                                      judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all  TO THIS GUARANTY AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL                                            claims in respect of any such action or proceeding may be heard and determined in such New York  BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE                                           State or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees  STATE OF NEW YORK.                                                                                         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.  Nothing in        SECTION 19. Notices.   All  communications  and  notices  hereunder  shall  (except  as              this Guaranty shall affect any right that the Administrative Agent, the Collateral Agent or any other  otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the           Secured Party may otherwise have to bring any action or proceeding relating to this Guaranty or  Credit Agreement; provided, that communications and notices to the Guarantors may be delivered             the other Loan Documents against a Guarantor or its properties in the courts of any jurisdiction if  to the Administrative Borrower on behalf of each of the Guarantors.                                        required to realize upon the Collateral as determined in good faith by the Person bringing such                                                                                                             action or proceeding.        SECTION 20. Survival of Agreement; Severability.                                                                                                                          (b)   Each of the Guarantors hereby irrevocably and unconditionally waives, to               (a)   All  covenants,  agreements,  indemnities,  representations  and  warranties            the fullest extent it may legally and effectively do so, any objection which it may now or hereafter  made by the Guarantors herein and in the certificates or other instruments delivered in connection         have  to the  laying of  venue of  any  suit,  action  or  proceeding  arising  out  of or  relating  to  this  with or pursuant to this Guaranty, the Credit Agreement or any other Loan Document shall be                Guaranty or the other Loan Documents in any New York State or Federal court.  Each of the parties  considered to have been relied upon by the Administrative Agent and the other Secured Parties              hereto  hereby  irrevocably  waives,  to  the  fullest  extent  permitted  by  law,  the  defense  of  an  and shall survive the execution and delivery of this Guaranty, the Credit Agreement and the other          inconvenient forum to the maintenance of such action or proceeding in any such court.  Loan Documents and the making of any Loans by the Lenders, regardless of any investigation  made by the Administrative Agent or any other Secured Party or on their behalf, and shall continue                     (c)   Each party to this Guaranty irrevocably consents to service of process in the  in full force and effect until terminated as provided in Section 12 hereof.                                manner provided for notices in Section 19 hereof.  Nothing in this Guaranty will affect the right                                                                                                             of any party to this Guaranty to serve process in any other manner permitted by law. EACH LOAN               (b)   In the event any provision of this Guaranty should be held to be invalid,               PARTY HEREBY  IRREVOCABLY APPOINTS  ADMINISTRATIVE  BORROWER  AS  ITS  illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining        AGENT FOR SERVICE OF PROCESS WITH RESPECT TO THIS GUARANTY AND EACH  provisions  contained  herein  shall  not  in  any  way  be  affected  or  impaired  thereby  (it  being   OTHER LOAN DOCUMENT AND ALL OTHER RELATED AGREEMENTS TO WHICH IT  understood that the invalidity of a particular provision in a particular jurisdiction shall not in and                      PROCESS AGENT of itself affect the validity of such provision in any other jurisdiction).  The parties shall endeavor    ACCEPTS SUCH APPOINTMENT AS THE PROCESS AGENT AND HEREBY AGREES TO  in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid          FORWARD PROMPTLY TO EACH LOAN PARTY ALL LEGAL PROCESS ADDRESSED  provisions the economic effect of which come as close as possible to that of the invalid, illegal or       TO EACH LOAN PARTY RECEIVED BY THE PROCESS AGENT. EACH PARTY HEREBY  unenforceable provisions.                                                                                  AGREES THAT  THE  FAILURE  OF THE  PROCESS  AGENT  TO  GIVE  ANY  NOTICE  OF                                                                                                             ANY  SUCH  SERVICE  SHALL  NOT  IMPAIR  OR  AFFECT  THE  VALIDITY  OF  SUCH        SECTION 21. Counterparts.   This  Guaranty  may  be  executed  in  counterparts  (and  by            SERVICE  OR  OF  ANY  JUDGMENT  RENDERED  IN  ANY  ACTION  OR  PROCEEDING  different parties hereto on different counterparts), each of which shall constitute an original but all    BASED THEREON. TO THE EXTENT EACH LOAN PARTY HAS OR HEREAFTER MAY  of which when taken together shall constitute a single contract.  Delivery of an executed signature        ACQUIRE  ANY  IMMUNITY  FROM  JURISDICTION  OF  ANY  COURT  OR  FROM  ANY  page to this Guaranty by facsimile transmission or by other electronic transmission (including             LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR                                                                                                             TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION OR OTHERWISE)                                                                                                             WITH  RESPECT  TO  ITSELF  OR  ITS  PROPERTY,  EACH  LOAN  PARTY  HEREBY        SECTION 22. Rules of Interpretation.  The rules of interpretation specified in Section 1.02                                                                                                             IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER  of the Credit Agreement shall be applicable to this Guaranty.                                                                                                             THIS GUARANTY AND EACH OTHER LOAN DOCUMENT.        SECTION 23. Jurisdiction; Consent to Service of Process.                                                                                                                   SECTION 24. Waiver of Jury Trial.  EACH PARTY HERETO HEREBY WAIVES, TO               (a)   Each of the Guarantors hereby irrevocably and unconditionally submits, for              THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE  LAW,  ANY  RIGHT  IT  MAY  itself and its property, to the exclusive jurisdiction of any New York State court or Federal court        HAVE  TO  A  TRIAL  BY  JURY  IN  RESPECT  OF  ANY  LITIGATION  DIRECTLY  OR  of the United States of America sitting in New York County, and any appellate court from any               INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY.   thereof, in any action or proceeding arising out of or relating to this Guaranty or the other Loan         EACH  PARTY  HERETO  (A) CERTIFIES  THAT  NO  REPRESENTATIVE,  AGENT  OR  Documents (other than with respect to actions taken by the Collateral Agent and any other Secured          ATTORNEY  OF  ANY  OTHER  PARTY  HAS  REPRESENTED,  EXPRESSLY  OR                                          12                                                                                                         13                                                                                                              





 






OTHERWISE,  THAT  SUCH  OTHER  PARTY  WOULD  NOT,  IN  THE  EVENT  OF  LITIGATION,     SEEK    TO    ENFORCE     THE    FOREGOING      WAIVER      AND  (B) ACKNOWLEDGES  THAT  IT  AND  THE  OTHER  PARTIES  HERETO  HAVE  BEEN  INDUCED  TO  ENTER  INTO  THIS  GUARANTY  BY,  AMONG  OTHER  THINGS,  THE  MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 24.         SECTION 25. Judgment  Currency.   Each  Guarantor  agrees  that  the  provisions  of  Section 9.21  of  the  Credit  Agreement  are  hereby  incorporated  herein  by  reference,  mutatis  mutandis, and the Collateral Agent, the Administrative Agent and each other Secured Party shall  be entitled to rely on each of them as if they were fully set forth herein.                                 [Signature Pages Follow]                                           14   





 






                                                                       Annex I to                                                                   Facility Guaranty        JOINDER    AGREEMENT,  dated  as     of   _____________,  20__,  made  by                                                    Additional  Guarantor (a) BNP  Paribas,  as  administrative  agent  (together  with  any  successor  and  assign,  the   Administrative Agent                                                         the  Secured Parties and (c) the Collateral Agent (on behalf of and for the benefit of the Administrative  Agent and the other Secured Parties, but solely in its role as representative of the Secured Parties  in holding and enforcing the Collateral and the Security Documents).  Capitalized terms used  herein  and  not  defined  herein  shall  have  the  meanings  assigned  to  such  terms  in  the  Credit  Agreement.                                   W I T N E S E T H:                                                     Credit Agreement                                      Merger  Sub                                                       Company                             Borrower                               Lenders Administrative Agent, the Collateral Agent and the other parties thereto. Capitalized terms used  herein  and  not  defined  herein  shall  have  the  meanings  assigned  to  such  terms  in  the  Credit  Agreement;         WHEREAS, in connection with the Credit Agreement, the Borrower and certain of its  Affiliates (other than the Additional Guarantor) have entered into the Guaranty, dated as of [_____]                                                                      Guaranty favor  of  the  (a) Administrative Agent  for  its  own  benefit  and  the benefit of  the other  Secured  Parties, (b) the Secured Parties and (c) the Collateral Agent (on behalf of and for the benefit of the  Administrative Agent and the other Secured Parties, but solely in its role as representative of the  Secured Parties in holding and enforcing the Collateral and the Security Documents);         WHEREAS, the Credit Agreement requires the Additional Guarantor to become a party to  the Guaranty; and         WHEREAS,  the  Additional  Guarantor  has  agreed  to  execute  and  deliver  this  Joinder  Agreement in order to become a party to the Guaranty;         NOW, THEREFORE, IT IS AGREED:               1.    Guaranty.   By  executing  and  delivering  this  Joinder  Agreement,  the  Additional Guarantor, as provided in Section 15 of the Guaranty, hereby becomes a party to the  Guaranty as a Guarantor thereunder with the same force and effect as if originally named therein  as a Guarantor and, without limiting the generality of the foregoing, hereby expressly assumes all  obligations and liabilities of a Guarantor thereunder.  The Additional Guarantor hereby represents  and warrants that, subject to any supplements to the Loan Document schedules attached hereto as  Annex A and Sections 2.22, 2.23 and 2.24 of the Credit Agreement, each of the representations  and warranties contained in Article III of the Credit Agreement and the other Loan Documents to  which such Guarantor is a party, in each case as they relate to such Guarantor, each of which is  incorporated herein by reference, are true and correct in all material respects (or in all respects if                                       Annex I-1  EU-DOCS\25892882.5 





 






                                                                                                                                                                                 Annex A to                                                                                                                                                                              Joinder Agreement  qualified by materiality or Material Adverse Effect) on and as the date hereof (after giving effect                                Loan Document Schedule Supplements  to  this  Joinder  Agreement)  as  if  made  on  and  as  of  such  date,  except  to  the  extent  such  representations  and  warranties  expressly  relate  to  an  earlier  date,  in  which  case  such  representations and warranties are true and correct in all material respects (or in all respects if  qualified by materiality or Material Adverse Effect), on and as of such earlier date, provided that   for the purposes of this Sectio                                                               2.    GOVERNING  LAW.   THIS  JOINDER  AGREEMENT  AND  ANY  CLAIM,  CONTROVERSY,  DISPUTE  OR  OTHER  CAUSE  OF  ACTION  (WHETHER  SOUNDING IN CONTRACT OR  TORT OR OTHERWISE) BASED UPON,  ARISING  OUT  OF  OR  RELATING  TO  THIS  JOINDER  AGREEMENT  AND  THE  TRANSACTIONS  CONTEMPLATED  HEREBY  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.                3.    Successors and Assigns.  This Joinder Agreement will be binding upon and  inure to the benefit of the parties hereto and their respective successors and assigns, except that  the Additional Guarantor may not assign, transfer or delegate any of its rights or obligations under  this Joinder Agreement without the prior written consent of the Administrative Agent and any such  assignment, transfer or delegation without such consent shall be null and void.         IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly  executed and delivered as of the date first above written.                                         [ADDITIONAL GUARANTOR]                                        By:                                              Name:                                       Title:                                        Annex I-2                                                                                                  Annex I-3  EU-DOCS\25892882.5                                                                                         EU-DOCS\25892882.5 





 






                                                                                                                                                                                                              Execution Version                                                                                       Exhibit F-2                                                                          to the Credit Agreement                    FORM OF U.S. PLEDGE AND SECURITY AGREEMENT      See attached.                                                                                                                                                                                                                                                                                                  PLEDGE AND SECURITY AGREEMENT                                                                                                                                                                      Dated as of October 2, 2019                                                                                                                                                                            by and among                                                                                                                                                              THE GRANTORS REFERRED TO HEREIN                                                                                                                                                                                 and                                                                                                                                                         DEUTSCHE BANK TRUST COMPANY AMERICAS                                                                                                                                                                         as Collateral Agent                                                                                                                                                                                                                                                                                                                            77785246_6                                                                                                                      EU-DOCS\25892880.7  EU-DOCS\26045402.3                                                                                                              76852875_12 





 






                                       Table of Contents                                                                                                          Table of Contents (continued)                                                                                                                                                                                                                                                                              Page                                                                                                                            Page  Article I Definitions ...................................................................................................................................... 4 Section 6.4. Nature of Appointment; Limitation of Duty ................................................................... 20   Section 1.1. Terms Defined in Credit Agreement ................................................................................. 4 Article VII General Provisions ................................................................................................................... 20   Section 1.2. Terms Defined in UCC ..................................................................................................... 4 Section 7.1. Waivers ........................................................................................................................... 20   Section 1.3. Definitions of Certain Terms Used Herein ....................................................................... 4 Section 7.2. Article II Grant of Security Interest .............................................................................................................. 7 Respect to the Collateral ................................................................................................. 21   Section 2.1. Grant by Subsidiary Grantors ............................................................................................ 7 Section 7.3. Compromises and Collection of Collateral ..................................................................... 22   Section 2.2. Grant by Parent ................................................................................................................. 8 Section 7.4. Secured Party Performance of Debtor Obligations ......................................................... 22   Section 2.3. Excluded Assets ................................................................................................................ 9 Section 7.5. Non-Lender Secured Parties............................................................................................ 22 Article III Representations and Warranties ................................................................................................... 9 Section 7.6. Additional Grantors ......................................................................................................... 23   Section 3.1. Title, Authorization, Validity, Enforceability, Perfection and Priority ............................. 9            Section 7.7. No Waiver; Amendments; Cumulative Remedies .......................................................... 23   Section 3.2. Type and Jurisdiction of Organization, Organizational and Identification                                           Section 7.8. Limitation by Law; Severability of Provisions ............................................................... 23                Numbers .......................................................................................................................... 10 Section 7.9. Reinstatement .................................................................................................................. 23   Section 3.3. Principal Location ........................................................................................................... 10 Section 7.10. Benefit of Agreement ...................................................................................................... 24   Section 3.4. Collateral Locations ........................................................................................................ 10 Section 7.11. Survival of Representations ............................................................................................ 24   Section 3.5. Exact Names .................................................................................................................... 10 Section 7.12. Expenses; Indemnity ....................................................................................................... 24   Section 3.6. Tangible Chattel Paper .................................................................................................... 10 Section 7.13. Headings .......................................................................................................................... 24   Section 3.7. Intellectual Property ........................................................................................................ 11 Section 7.14. Termination; Release ...................................................................................................... 24   Section 3.8. No Financing Statements, Security Agreements ............................................................. 11      Section 7.15. Entire Agreement ............................................................................................................ 25   Section 3.9. Pledged Collateral ........................................................................................................... 11 Section 7.16. CHOICE OF LAW .......................................................................................................... 25 Article IV Covenants .................................................................................................................................. 12 Section 7.17. Consent to Jurisdiction .................................................................................................... 25   Section 4.1. General ............................................................................................................................ 12 Section 7.18. WAIVER OF JURY TRIAL ........................................................................................... 26   Section 4.2. Delivery of Instruments, Securities, Tangible Chattel Paper and Documents ................ 13                      Section 7.19. Intercreditor Agreement .................................................................................................. 26   Section 4.3. Uncertificated Pledged Collateral ................................................................................... 14 Section 7.20. Counterparts .................................................................................................................... 26   Section 4.4. Pledged Collateral ........................................................................................................... 14 Article VIII Notices .................................................................................................................................... 26   Section 4.5. Intellectual Property ........................................................................................................ 15 Section 8.1. Sending Notices .............................................................................................................. 26   Section 4.6. Commercial Tort Claims ................................................................................................. 16 Section 8.2. Change in Address for Notices ........................................................................................ 26   Section 4.7. No Interference ................................................................................................................ 16 Article IX The Collateral Agent.................................................................................................................. 26   Section 4.8. Insurance ......................................................................................................................... 16 Section 9.1. Appointment .................................................................................................................... 26 Article V Events of Default and Remedies ................................................................................................. 16 Section 9.2. Resignation; Removal; Successors and Assigns ............................................................. 27   Section 5.1. Remedies ......................................................................................................................... 16 Section 9.3.                     ...................................................................... 27   Section 5.2.                                           ................................................................ 18      Section 9.4. Extensions ....................................................................................................................... 27   Section 5.3. Grant of Intellectual Property License ............................................................................ 18 Exhibit A ....................................................................................................................................................... 1 Article VI Account Verification; Attorney-in-fact; Proxy .......................................................................... 18 Exhibit B ....................................................................................................................................................... 2   Section 6.1. Account Verification ....................................................................................................... 18 Exhibit C ....................................................................................................................................................... 1   Section 6.2. Authorization for the Collateral Agent to Take Certain Action ...................................... 19          Exhibit D ....................................................................................................................................................... 1   Section 6.3. Proxy ............................................................................................................................... 20 Exhibit E ....................................................................................................................................................... 1                                                 i                                                                                                                               ii  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                  Table of Contents (continued)                                                                                                                                                                                                                                                                                                               Page                                                                                                                                                            PLEDGE AND SECURITY AGREEMENT  Exhibit F ....................................................................................................................................................... 1 Annex I to Pledge and Security Agreement .................................................................................................. 1 THIS  PLEDGE  AND  SECURITY  AGREEMENT  (as  it  may  be  amended,  restated,                                                                                                                                  supplemented or otherwise mo                            Security Agreement Annex II to Pledge and Security Agreement ................................................................................................ 1                                                                                                                                  October 2, 2019 by and among BIDFAIR HOLDINGS INC.                            Parent  BIDFAIR                                                                                                                                  MERGERIGHT INC.                             Merger Sub                                be merged                                                                                                                                                                                       Company                                                                                                                                              Borrower                                                                                                                                 which become parties to this Security Agreement by executing a Security Agreement Supplement hereto in                                                                                                                                  substantially the form of Annex I hereto (such additional entities, together with such other Loan Parties,                                                                                                                                          Grantor                        Grantors        DEUTSCHE  BANK  TRUST  COMPANY                                                                                                                                  AMERICAS, a New York banking corporation, in its capacity as collateral agent (in such capacity, together                                                                                                                                  with  any  successor  collateral  agent  appointed  pursuant  to  the  Credit  Agreement  referred  herein,  the                                                                                                                                   Collateral Agent                                                                                                                                                                                                     PRELIMINARY STATEMENT                                                                                                                                                 The  Borrower,  BNP  Paribas,  in  its  capacity  as  administrative  agent  (in  such  capacity,                                                                                                                                  together  with  any  successor  administrative  agent  appointed  pursuant  to  the  Credit  Agreement  referred                                                                                                                                             Administrative  Agent                                                                                                                                 Agreement dated as of October 2, 2019 (as the same may be amended, restated, amended and restated,                                                                                                                                                                                                               Credit Agreement                                                                                                                                 Each Grantor is entering into this Security Agreement in order to induce the Lenders to enter into and extend                                                                                                                                  credit to the  Borrower under the Credit  Agreement  and to  secure  the Obligations that  it has  agreed to                                                                                                                                  guarantee pursuant to the Facility Guaranty.                                                                                                                                                 ACCORDINGLY, the Grantors and the Collateral Agent, on behalf of the Secured Parties,                                                                                                                                  hereby agree as follows:                                                                                                                                                                             ARTICLE I                                                                                                                                                                          DEFINITIONS                                                                                                                                                 Section 1.1.   Terms Defined in Credit Agreement.  All capitalized terms used herein                                                                                                                                  and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement.  The                                                                                                                                  rules of construction and other interpretive provisions specified in Article I of the Credit Agreement shall                                                                                                                                  apply to this Security Agreement, including with respect to terms defined in in the first paragraph hereof                                                                                                                                  and in the Preliminary Statement.                                                                                                                                                 Section 1.2.   Terms Defined in UCC.  Terms defined in the UCC that are not otherwise                                                                                                                                  defined in this Security Agreement or the Credit Agreement are used herein as defined in the UCC (and if                                                                                                                                  defined in more than one article of the UCC, the terms shall have the meaning specified in Article 9 thereof).                                                                                                                                                 Section 1.3.   Definitions  of  Certain  Terms  Used  Herein.   As  used  in  this  Security                                                                                                                                  Agreement, in addition to the terms defined in the first paragraph hereof and in the Preliminary Statement,                                                                                                                                  the following terms shall have the following meanings:                                                                                                                                                  Accounts                                                                                                                                                                                                       Applicable IP Office                                                                                                                                 States Copyright Office, as the case may be.                                                                                                                                   76852875_6                                                 iii                                                                              76852875_10  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                                  Article                                                                                                                         Investment Property                                                      is specifically referenced.                                                                                                                                                 IP Ancillary Rights                Art Inventory            any Inventory consisting of works of art.                                               foreign  counterparts  to,  and  all  divisionals,  reversions,  continuations,  continuations-in-part,  reissues,                                                                                                                                  reexaminations,  renewals  and  extensions  of,  such  Intellectual  Property  and  all  income,  royalties,  and                 Chattel Paper                                                                                                    proceeds at any time due or payable or asserted under or with respect to any of the foregoing or otherwise                                                                                                                                  with respect to such Intellectual Property throughout the world, including all rights to sue or recover at law                 Collateral                                Article II.                                                            or  in  equity  for  any  past,  present  or  future  infringement,  misappropriation,  dilution,  violation  or  other                                                                                                                                  impairment thereof, and, in each case, all other rights accruing thereunder or pertaining thereto throughout                 Commercial Tort Claims                                                                                           the world (including all rights of priority and all rights to obtain any other IP Ancillary Right throughout                                                                                                                                  the world).                  Control                                                                    -104,  9-105, 9-106 or 9-107 of Article 9 of the UCC.                                                                                                 IP  Licenses                                                                                                                                 interest in and to (a) any and all written licensing agreements or similar arrangements granting such Person                 Copyrights                                                                                                       the right to use or otherwise exploit the Intellectual Property of another Person, or granting any other Person  interest in and to the following: (a) all copyrights, rights and interests in copyrights, works protectable by                  the right to  use or  otherwise  exploit the  Intellectual Property of such  Person, (b) all income,  royalties,  copyright, copyright registrations, and copyright applications and (b) all IP Ancillary Rights relating to the                  damages, claims, and payments now or hereafter due or payable under and with respect thereto, including,  foregoing in clause (a).                                                                                                        without limitation, damages and payments for past and future breaches thereof, and (c) all rights to sue for                                                                                                                                  past, present, and future breaches thereof.                 Deposit Accounts                                                                                                                                                                                                      Lenders                Determination  Date                                                                                              assigns.  Parent Guarantor, the date hereof and (b) with respect to any Person that becomes a Grantor after the date  hereof (including the Subsidiary Revolver Borrower), the date on which such Grantor becomes a party                                            Letter-of-Credit Rights                                                     hereto.                                                                                                                                                 Material  Intellectual  Property                Documents                                            of the UCC.                                                 Property of such Grantor that is material to the conduct of the busuiness or operations of the Company and                                                                                                                                  its Subsidiaries (taken as a whole) or that is used in the business or operations of the Company or any of its                 Equipment                                                                                                        Subsidiaries and otherwise of material value.                  Exhibit                                                                                                                         Non-Lender  Secured  Party is specifically referenced.                                                                                                     Provider (in each case, in its capacity as such).                  Final Release Conditions                          rth in clause (f) of Section 9.20 of                                          Patents the Credit Agreement.                                                                                                           and to: (a) any and all patents and patent applications; (b) all inventions and improvements described and                                                                                                                                  claimed therein; and (c) all IP Ancillary Rights relating to the foregoing in clauses (a) and (b).                 General Intangibles                                                                                                                                                                                                     Permitted Liens                Goods                                                                                                            (ii) all other Liens permitted by Section 4.06 of Annex I of the Credit Agreement.                  Instruments                                   rticle 9 of the UCC.                                                              Pledged Collateral                                                                                                                                 the  Grantors,  whether  or  not  physically  delivered  to  the  Collateral  Agent  pursuant  to  this  Security                 Intellectual Property                                                                                            Agreement, other than, in each case, Excluded Assets.  and  interests  in  or  relating  to  intellectual  property  arising  under  any  Requirement  of  Law  and  all  IP  Ancillary Rights relating thereto, including all Copyrights, Patents, Software, Trademarks, Internet Domain                                    Receivables  means the Accounts,  Chattel  Paper,  Instruments  and  any  other rights or  Names and Trade Secrets.                                                                                                        claims to receive money which are General Intangibles or which are otherwise included as Collateral.                  Internet Domain Name                                                                                                            Section                                                                 document  and interest arising under any Requirement of Law in or to internet domain names.                                               is specifically referenced.                  Inventory                                                                                                                       Security                                                                                                     -5-                                                                                                                             -6-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                                  Security Agreement Supplement                                                                                    from or to, such Grantor, and regardless of where located (all of which will be collectively referred to as  Security  Agreement  in  substantially  the  form  of  Annex  I  hereto  executed  by  an  entity  that  becomes  a                 Subsidiary Grantor Collateral            Grantor under this Security Agreement after the date hereof.                                                                                                                                                        (i)    all Accounts;                 Software                                              source  code  and  object  code  versions, (b) all data, databases and compilations of data, whether machine readable or otherwise, and (c)                                            (ii)   all Chattel Paper;  all documentation, training materials and configurations related to any of the foregoing.                                                                                                                                                        (iii)  all Documents;                 Stock Rights               ends, instruments or other distributions and any other right  or property which the Grantors shall receive or shall become entitled to receive for any reason whatsoever                                            (iv)   all Equipment;  with respect to, in substitution for or in exchange for any Capital Stock constituting Collateral, any right to  receive an Capital Stock and any right to receive earnings, in which the Grantors now have or hereafter                                               (v)    all Fixtures;  acquire any right, issued by an issuer of such Capital Stock.                                                                                                                                                        (vi)   all General Intangibles;                 Subsidiary  Grantor                                                uding,  for  the  avoidance of doubt, the Administrative Borrower and the Subsidiary Revolver Borrower.                                                                 (vii)  all Goods;                  Supporting Obligations                                                                                                                 (viii) all Instruments;                  Tangible Chattel Paper                                          f the UCC.                                                             (ix)   all Inventory;                  Termination Date                                                                                                                       (x)    all Investment Property;                  Trademarks                                                                                                                             (xi)   all cash or cash equivalents;  interest in and to the following:  (a) all trademarks (including service marks), trade names and trade dress,  logos, and other indicia of origin, and all registrations and applications for registration thereof and the                                           (xii)  all letters of credit, Letter-of-Credit Rights and Supporting Obligations;  goodwill of the business connection with the use of or symbolized by the foregoing; and (b)  all IP Ancillary  Rights to the foregoing.                                                                                                                              (xiii) all Deposit Accounts with any bank or other financial institution;                  Trade Secrets                                                                                                                          (xiv)  all Commercial Tort Claims described in any Amendment to this Security  interest  (and  all  related  IP  Ancillary  Rights)  arising  under  any  Requirement  of  Law  in  or  relating  to                  Agreement delivered pursuant to Section 4.6;  proprietary, confidential and/or non-public information, however documented, including but not limited to  confidential ideas, know-how, concepts, methods, processes, formulae, reports, data, customer lists, mailing                                          (xv)   all Intellectual Property and all IP Licenses; and  lists, business plans and all other trade secrets.                                                                                                                                                        (xvi)  all accessions to, substitutions for and replacements, proceeds (including                 UCC                          mercial Code, as in effect from time to time, of the State                                 Stock  Rights),  insurance  proceeds  and  products  of  the  foregoing,  together  with  all  books  and  of  New  York or  of  any  other  state the  laws  of  which  are required  as  a  result  thereof to  be  applied  in                 records,  customer  lists,  credit  files,  computer  files,  programs,  printouts  and  other  computer  connection with the attachment, perfection or priority of, or remedies with respect to,                                                materials and records related thereto and any General Intangibles at any time evidencing or relating                                                                                                                                         to any of the foregoing;                 The foregoing definitions shall be equally applicable to both the singular and plural forms                       to secure the prompt and complete payment and performance of the Obligations.  of the defined terms.                                                                                                                                                Section 2.2.   Grant  by  Parent.   Parent  hereby  pledges,  assigns  and  grants  to  the                                           ARTICLE II                                                                             Collateral Agent, on behalf of and for the ratable benefit of the Secured Parties, a security interest in all of                                GRANT OF SECURITY INTEREST                                                                        its right, title and interest in, to and under (a) all of the shares of Capital Stock of the Borrower, as well as                                                                                                                                  any other shares, stock certificates, options or rights of any nature whatsoever in respect of the Capital                Section 2.1.   Grant by Subsidiary Grantors.  Each Subsidiary Grantor hereby pledges,                             Stock of the Borrower that may be issued or granted to, or held by, Parent and (b) any loans made by Parent  assigns and grants to the Collateral Agent, on behalf of and for the ratable benefit of the Secured Parties, a                  to the Borrower prior to, as of or following the date hereof, including any instruments or promissory notes  security interest in all of its right, title and interest in, to and under all personal property and other assets,              representing the same and (c) all accessions to, substitutions for and replacements, proceeds (including  whether now owned by or owing to, or hereafter acquired by or arising in favor of such Subsidiary Grantor                       Stock  Rights),  insurance  proceeds  and  products  of  the  foregoing,  together  with  all  books  and  records,  (including under any trade name or derivations thereof), and whether owned or consigned by or to, or leased                     customer lists, credit files, computer files, programs, printouts and other computer materials and records                                                                                                                                  related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing (all                                                -7-                                                                                                                             -8-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                                                                                                                                                   license agreements that do not reference a specific copyright registration number) in the Applicable IP                                                                                                                                  Office and (ii) are prior to all other Liens on the Collateral other than Permitted Liens.  Obligations.                                                                                                                                                 (c)     Notwithstanding anything to the contrary herein, no Grantor shall be required to                Section 2.3.   Excluded  Assets.   Notwithstanding  the  foregoing,  the  Collateral  shall                       perfect the security interests created hereby by any means other than (i) filings pursuant to the UCC of any  exclude Excluded Assets.  Notwithstanding the foregoing, Excluded Assets shall not include any proceeds,                        applicable jurisdiction, (ii) filing and recording fully executed Confirmatory Grants in any Applicable IP  products, substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions                       Office, (iii) in the case of Collateral that constitutes Tangible Chattel Paper, Instruments, Documents or  or replacements would otherwise constitute Excluded Assets).                                                                    Certificated Securities, in each case, to the extent included in the Collateral and required by Section 4.2                                                                                                                                  delivery to the Collateral Agent to be held in its possession in the United States, and (iv) in the case of                                           ARTICLE III                                                                            Collateral that consists of Commercial Tort Claims, taking the actions specified in Section 4.6.  No Grantor                            REPRESENTATIONS AND WARRANTIES                                                                        shall be required to (x) grant the Collateral Agent perfection through control agreements or perfection by                                                                                                                                  Control with respect to any Collateral (other than in respect of Pledged Collateral where the issuer of such                Each  Grantor  represents  and  warrants,  and  each  Grantor  that  becomes  a  party  to  this                  Pledged Collateral is a Restricted Subsidiary) or (y) take any actions under any laws outside of the United  Security Agreement pursuant to the execution of a Security Agreement Supplement represents and warrants                         States to grant, perfect or provide for the enforcement of any security interest (including any Intellectual  (after giving effect to supplements, if any, to each of the Exhibits hereto with respect to such Grantor as                     Property registered in any non U.S. jurisdiction) except, in each case, in accordance with Section 5.14 of  attached to such Security Agreement Supplement), to the Collateral Agent for the benefit of the Secured                         the  Credit  Agreement  and  the  Agreed  Security  Principles.   Notwithstanding  anything  in  this  Security  Parties that:                                                                                                                   Agreement, no Grantor makes any representation or warranty herein as to (A) the effects of perfection or                                                                                                                                  non-perfection, the priority or the enforceability of any pledge of or security interest in any Capital Stock                Section 3.1.   Title, Authorization, Validity, Enforceability, Perfection and Priority.                           of any Subsidiary that is not organized under the laws of United States, any state thereof or the District of                                                                                                                                  Columbia, or as to the rights and remedies of the Collateral Agent or any Secured Party with respect thereto,                (a)     Such Grantor has good and valid rights in or the power to transfer the Collateral                         under foreign Law, (B) the pledge or creation of any security interest, or the effects of perfection or non- and title to the Collateral with respect to which it has purported to grant a security interest hereunder, free                 perfection, the priority or the enforceability of any pledge of or security interest to the extent such pledge,  and clear of all Liens except for Permitted Liens, and has the corporate or other organizational power and                      security interest, perfection or priority is not required pursuant to Section 2.3.  authority  to  grant  to  the  Collateral  Agent  the  security  interest  in  the  Collateral  pursuant  hereto.   The  execution and delivery by such Grantor of this Security Agreement has been duly authorized by proper                                          Section 3.2.   Type and Jurisdiction of Organization, Organizational and Identification  corporate, limited liability company, or partnership, as applicable, proceedings of such Grantor, and this                      Numbers.  The type of entity of such Grantor, its state of organization, the organizational number, if any,  Security Agreement constitutes a legal, valid and binding obligation of such Grantor and creates a security                     issued to it by its state of organization and its federal employer identification number, if any, in each case  interest which is enforceable against such Grantor in all Collateral it now owns or hereafter acquires, subject                 as of the Determination Date are set forth on Exhibit B.   generally and subject to general principles of equity, regardless of whether considered in a proceeding in                                    Section 3.3.   Principal Location equity or at law.                                                                                                               place of business (if it has only one) or its chief executive office (if it has more than one place of business),                                                                                                                                  in each case as of the Determination Date, are disclosed in Exhibit B.                (b)     Subject to the limitations set forth in Section 3.1(c), the security interests granted  pursuant to this Security Agreement (i) will constitute valid and perfected security interests in the Collateral                              Section 3.4.   Collateral Locations (to the extent perfection may be obtained by the filings or other actions described in clause (A), (B) or (C)                   locations where Collateral in excess of $5,000,000 in value is located (other than Art Inventory located in  of this Section 3.1(b)) in favor of the Collateral Agent, for the benefit of the Secured Parties, as collateral                 any residence or any Inventory in transit) are listed on Exhibit B.  As of the Determination Date, all of said  security  for  the  Obligations,  upon  (A)  with  respect  to  Collateral  that  is  not  Excluded  Assets in  which           locations are owned by the Company or such Grantor except (i) for locations (A) which are leased by the  perfection can be obtained by filing a financing statement, the filing in the applicable filing offices (which,                 Company or such Grantor as lessee or (B) at which Inventory is held in a public warehouse or is otherwise  with respect to the filings in respect of Grantors existing on the date hereof, are the filing offices listed on                held by a bailee or on consignment and (ii) as may be otherwise agreed to by the Collateral Agent in its  Exhibit A                                                                                                                       reasonable discretion.                                         teral, (B) with respect to Instruments, Tangible Chattel Paper,  Certificated Securities and Negotiable Documents in each case that constitute Collateral, delivery to the                                     Section 3.5.   Exact  Names Collateral  Agent  of  all  Instruments,  Tangible  Chattel  Paper,  Certificated  Securities  and  Negotiable  Documents  in  each  case,  properly  endorsed  for  transfer  in  blank  and  (C)  with  respect  to  Registered               organizational do Intellectual Property that is not Excluded Assets, in addition to the actions described in sub-clause (i)(A)                    Determination Date, such Grantor has not, during the past five years immediately prior to the Determination  above,  the  completion  or  recordation  of  the  filing  of  a  fully  executed  Confirmatory  Grant  of  Security            Date, been known by or used any other corporate or fictitious name, except as set forth on Exhibit B.  Interest in United States Copyrights, Confirmatory Grant of Security Interest in United States Patents and/or  the Confirmatory Grant of Security Interest in United States Trademarks, each substantially in the form of                                    Section 3.6.   Tangible  Chattel  Paper.   Exhibit  C  lists  all  Tangible  Chattel  Paper  Annex II                Confirmatory Grant                                                                                      constituting  Collateral  of  such  Grantor  with  a  value  in  excess  of  $2,500,000,  in  each  case,  as  of  the  constituting  Registered  Intellectual  Property  (which  for  clarity  will  not  include  any  requirement to  list           Determination Date. As of the Determination Date, all action by such Grantor necessary to perfect the                                                                                                                                                                             Exhibit C (including the delivery of all originals and the                                                 -9-                                                                                                                             -10-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                   placement of a legend on all Tangible Chattel Paper as required hereunder) has been duly taken within the                                     (b)     In addition, to the knowledge of such Grantor, as of the Determination Date, (i)  periods required hereunder therefor. As of the Determinable Date, upon the taking of such actions, the                          none of the Pledged Collateral owned by it has been issued or transferred in violation of the securities  Collateral Agent will have a fully perfected first priority security interest in the Collateral listed on Exhibit               registration, securities disclosure or similar laws of any jurisdiction to which such issuance or transfer may  C, subject only to Permitted Liens.                                                                                             be subject, (ii) in the case of any Pledged Collateral that constitutes Capital Stock, no options, warrants,                                                                                                                                  calls or commitments  of  any  character whatsoever (A) exist relating to such  Pledged Collateral or (B)                Section 3.7.   Intellectual Property.                                                                             obligate the issuer of any such Capital Stock included in the Pledged Collateral to issue additional Capital                                                                                                                                  Stock, and (iii) no consent, approval, authorization, or other action by, and no giving of notice, filing with,                (a)     Exhibit D-1 contains a complete and accurate listing as of the Determination Date                         any governmental authority or any other Person is required for the pledge by such Grantor of such Pledged  of all Copyrights, Trademarks and Patents that are registered or subject to applications for registration in                    Collateral  pursuant  to  this  Security  Agreement  or  for  the  execution,  delivery  and  performance  of  this  the Applicable IP Office, together with all IP Licenses pursuant to which any Grantor is granted an exclusive                   Security Agreement by such Grantor, or for the exercise by the Collateral Agent of the voting or other rights  license to one or more registered United States Copyrights, United States Trademarks or United States                           provided for in this Security Agreement or for the remedies in respect of the Pledged Collateral pursuant to  Patents t                                    Registered Intellectual Property                                                   this Security Agreement, except those already obtained and/or as may be required in connection with such  the foregoing items, as applicable (1) the owner, (2) the title, and (3) the registration or application number                 disposition by laws affecting the offering and sale of securities generally.  and  registration  or  application  date.  Exhibit  D-2  contains  a  complete  and  accurate  listing  as  of  the  Determination Date of all Material Intellectual Property that is registered or subject to applications for                                    (c)     As of the Determination Date, except as set forth in Exhibit E, such Grantor owns  registration in the applicable registration office in any Covered Jurisdiction (other than the United States),                  100% of the issued and outstanding Capital Stock which constitutes Pledged Collateral owned by it.  including, as  applicable (1) the owner,  (2) the title, and (3) the registration or application  number and  registration or application date.                                                                                                             (d)     Commercial Tort Claims. As of the Determination Date, except as (i) previously                                                                                                                                  disclosed in accordance with Section 4.6 or (ii) as set forth in a Security Agreement Supplement,, there is                (b)     On the Effective Date, all Material Intellectual Property owned by such Grantor is,                       no Commercial Tort Claim for which a Grantor has filed complaint(s) in court(s) of competent jurisdiction  to the knowledge of such Grantor, valid, in full force and effect, subsisting, unexpired and enforceable, and                   where the amount of such Commercial Tort Claim exceeds $2,500,000.  no Material Intellectual Property has been abandoned.  There are no pending (or, to the knowledge of such  Grantor, threatened) actions, investigations, suits, proceedings, audits, claims, demands, orders or disputes                                                            ARTICLE IV                                                                                                                                                                          COVENANTS                                                                                          ringing,  misappropriating,  diluting,  violating  or  otherwise  impairing  any  Material  Intellectual  Property  of  such                            From the date of this Security Agreement, each Grantor party hereto as of the date hereof  Grantor.                                                                                                                        agrees, and from and after the effective date of any Security Agreement Supplement applicable to any                                                                                                                                  Grantor (and after giving effect to supplements, if any, to each of the Exhibits hereto with respect to such                Section 3.8.   No Financing Statements, Security Agreements.  To the knowledge of any                             subsequent Grantor as attached to such Security Agreement Supplement) and thereafter, in each case, until  Grantor, no financing statement or security agreement describing all or any portion of the Collateral which                     this Security Agreement is terminated pursuant to the terms hereof or such Grantor is released from its  has not lapsed or been terminated (by a filing authorized by the secured party in respect thereof) naming                       obligations hereunder, each such additional Grantor agrees that:  such Grantor as debtor has been filed or is of record in any jurisdiction except for financing statements or  security agreements (a) naming the Collateral Agent on behalf of the Secured Parties as the secured party                                     Section 4.1.   General.  and (b) in respect of Permitted Liens.                                                                                                                                                (a)     Authorization to File Financing Statements; Ratification.  Such Grantor hereby                Section 3.9.   Pledged Collateral.                                                                                authorizes but does not obligate the Collateral Agent to file, and if reasonably requested will deliver to the                                                                                                                                  Collateral Agent, all financing statements and other documents and take such other actions as may from                (a)     As of the Determination Date, (A) Exhibit E sets forth a complete and accurate list                       time to time be reasonably requested by the Collateral Agent in order to maintain a first perfected security  of all Pledged Collateral owned by such Grantor and (B) such Grantor is the direct, sole beneficial owner                       interest in and, if applicable in order to maintain such a security interest, Control of, the Collateral owned  and sole holder of record of the Pledged Collateral listed on Exhibit E owned by it, free and clear of any                      by such Grantor, in each case, to the extent required by Section 3.1.  Any financing statement filed by the  Liens, except for any Permitted Liens.  Such Grantor further represents and warrants that (i) all Pledged                       Collateral  Agent  may  be  filed  in  any  filing  office  in  any  UCC  jurisdiction  and  may  (i) indicate  such  Collateral owned by it constituting Capital Stock has been (to the extent such concepts are relevant with  respect to such Pledged Collateral) duly authorized, validly issued, are fully paid and non-assessable, (ii)                    particular  asset  comprised  in  the  Collateral  falls  within  the  scope  of  Article  9  of  the  UCC  of  such  with respect to any certificates delivered to the Collateral Agent representing Capital Stock, either such                      jurisdiction, or (2) by any other description which reasonably approximates the description contained in  certificates are Securities as defined in Article 8 of the UCC as a result of actions by the issuer or otherwise,               this Security Agreement, and (ii) contain any other information required by part 5 of Article 9 of the UCC  or, if such certificates are not Securities, such Grantor has so informed the Collateral Agent so that the                      for the sufficiency or filing office acceptance of any financing statement or amendment, including (A)  Collateral Agent may take steps to perfect its security interest therein as a General Intangible, and (iii) all                 whether  such  Grantor  is  an  organization,  the  type  of  organization  and  any  organization  identification  Pledged Collateral which represents Indebtedness owed to such Grantor has, to the knowledge of such                             number issued to such Grantor and (B) in  the case of  a financing  statement filed  as  a fixture  filing,  a  Grantor, been duly authorized, authenticated or issued and delivered by the issuer of such Indebtedness and                     sufficient description of real property to which the Collateral relates.  Such Grantor also agrees to furnish  is the legal, valid and binding obligation of such issuer.                                                                      any  such  information  described  in  the  foregoing  sentence  to  the  Collateral  Agent  promptly  upon  the                                                                                                                                                                                        ing anything to the contrary contained herein,                                                 -11-                                                                                                                            -12-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                   Collateral Agent shall not be responsible for filing any financing or continuation statements or recording                      evidencing or constituting Collateral having a value, individually or in the aggregate of $5,000,000 or more  any  documents  or  instruments  in  any  public  office  at  any  time  or  times  or  otherwise  perfecting  or               and (d) promptly deliver to the Collateral Agent a duly executed amendment to this Security Agreement,  maintaining the perfection of any security interest in the Collateral.                                                          substantially in the form of  Exhibit F        Amendment                                                                                                                                 pledge  such  additional  Collateral.   Such Grantor hereby authorizes the  Collateral Agent  to attach each                (b)     Further Assurances.  Such Grantor will, if reasonably requested by the Collateral                         Amendment to this Security Agreement and agrees that all additional Collateral owned by it set forth in  Agent  but  subject to  Section  3.1,  promptly  and  duly  execute  and  deliver  such further  instruments  and               such Amendments shall be considered to be part of the Collateral.  documents and take such further actions for the purpose of obtaining or preserving the full benefits of this  Security  Agreement  and  of  the  rights  and  powers  herein  granted  by  such  Grantor,  including,  without                              Section 4.3.   Uncertificated Pledged Collateral.  With respect to any Pledged Collateral  limitation, the filing of any financing or continuation statements under the UCC (or other similar laws) as                     owned by it constituting uncertificated equity Securities of any Restricted Subsidiary, such Grantor shall  in effect from time to time in any United States jurisdiction with respect to the security interests created                    use commercially reasonable efforts to cause the issuers thereof to cause the Collateral Agent to have and  hereby.  Such Grantor also agrees to take any and all actions necessary to defend title to the Collateral                       retain Control over such Pledged Collateral.  against all persons and to defend the security interest of the Collateral Agent in its Collateral and the priority  thereof against any Lien (other than Permitted Liens).                                                                                        Section 4.4.   Pledged Collateral.                 (c)     Other Financing Statements.  Such Grantor will not authorize the filing of any                                          (a)     Changes in Capital Structure of Issuers.  Except as such dissolution, liquidation,  financing statement naming it as debtor covering all or any portion of the Collateral owned by it, except for                   retirement, merger or consolidation is permitted by the Credit Agreement or any other Loan Document, no  financing statements (i) naming the Collateral Agent on behalf of the Secured Parties as the secured party,                     Grantor will vote any of the Capital Stock constituting Pledged Collateral owned by it in favor of any of  and (ii) in respect of Permitted Liens.  Such Grantor acknowledges that, prior to the satisfaction of the Final                 the dissolution or liquidation of the issuer of such Capital Stock, the retirement of any Capital Stock owned  Release  Conditions,  it  is  not  authorized  to  file  any  financing  statement  or  amendment  or  termination              by such Grantor in such issuer or the merger or consolidation of such issuer.  statement with respect to any financing statement filed by the Collateral Agent in accordance with clause  (a) above wi                                                                                                                                  (b)     Registration  of  Pledged  Collateral.   Such  Grantor  will  permit  any  registerable  Section 9-509(d)(2) of the UCC.                                                                                                 Pledged  Collateral  owned by  such  Grantor  to  be  registered  in  the  name  of  the  Collateral  Agent  or  its                                                                                                                                  nominee  at  any  time  at  the  option  of  the  Collateral  Agent,  following  the  occurrence  and  during  the                (d)     Change of Name; etc.  Such Grantor agrees to promptly furnish to the Collateral                           continuance of an Event of Default and without any further consent of such Grantor.  Agent (and in any event within ten (10) days of such change or such longer period as the Collateral Agent                                                                                                                                                (c)     Exercise of Rights in Pledged Collateral.                                                                               zational  legal entity                                                                                                                                                        (i)    Without in any way limiting the foregoing and subject to clause (ii) below,  number assigned to it by its jurisdiction of incorporation or formation.                                                               such Grantor shall have the right to exercise all voting rights or other rights relating to the Pledged                                                                                                                                         Collateral owned by it for all purposes not in conflict with this Security Agreement, the Credit                Section 4.2.   Delivery  of  Instruments,  Securities,  Tangible  Chattel  Paper  and                                    Agreement or any other Loan Document.  The Collateral Agent will at the sole cost and expense  Documents.  Such Grantor will (a) deliver to the Collateral Agent the originals of all Certificated Securities                         of the Grantors execute and deliver (or cause to be executed and delivered to such Grantor) all such  constituting Collateral owned by it having an aggregate value of $5,000,000, duly indorsed in a manner                                 proxies,  powers  of  attorney  and  other  instruments  as  such  Grantor  may  reasonably  request  in  reasonably satisfactory to the Collateral Agent, or more (i) in the case of any such Certificated Securities                           writing for the purpose of enabling such Grantor to exercise such voting or other rights that it is  owned by it on the Determination Date, promptly upon execution of this Security Agreement (or such later                               entitled to exercise pursuant to this clause (c), in each case as specified in such request and in form  date as the Collateral Agent may agree to in its reasonable discretion) and (ii) in the case of any such                               and substance reasonably satisfactory to the Collateral Agent and such Grantor.  Certificated Securities obtained by it after the Determination Date, on or prior to the date on which financial  statements are required to be delivered pursuant to Section 4.10 in Annex I of the Credit Agreement in                                                (ii)   Such Grantor will permit the Collateral Agent or its nominee at any time  respect of the fiscal period in which such Certificated Securities were so obtained (or such later date as the                         after the occurrence and during the continuance of an Event of Default, without notice, to exercise  Collateral Agent may agree to in its reasonable discretion) and such Grantor shall hold such certificates                              all voting rights or other rights relating to the Pledged Collateral owned by it, including, without  Securities in trust for the Collateral Agent until such Determination Date, (b) within fifteen (15) Business                           limitation,  exchange,  subscription  or  any  other  rights,  privileges,  or  options  pertaining  to  any  Days (or such later date as the Collateral Agent may agree to in accordance with the written instructions of                           Capital Stock or Investment Property constituting such Pledged Collateral as if it were the absolute  the Required Lenders) following any                                                                                                    owner thereof; provided that, unless otherwise directed by the Required Lenders, the Collateral  Paper constituting Collateral owned by it having a value, individually or in the aggregate, of $2,500,000 or                           Agent shall have the right at any time after the occurrence and during the continuance of an Event  more (other than any Instrument or Tangible Chattel Paper previously delivered to, and in the possession                               of Default to permit the Grantors to exercise such rights.  of, the Collateral Agent, duly indorsed in a manner reasonably satisfactory to the Collateral Agent), with                                                                                                                                                        (iii)  Such Grantor shall be entitled to collect and receive for its own use all  security interest o                                                                                                                    dividends, distributions, principal interest and other payments paid or distributed in respect of the  such Instrument or Tangible Chattel Paper to the Collateral Agent, duly indorsed in a manner reasonably                                Pledged Collateral owned by it to the extent and only to the extent that such dividends, distributions,  satisfactory to the Collateral Agent, (c) promptly deliver to the Collateral Agent (and thereafter hold in trust                       principal  interest  and  other  payments  are  permitted  by,  and  otherwise  paid  or  distributed  in  for  the  Collateral  Agent  upon  receipt  and  promptly  deliver  to  the  Collateral  Agent)  any  Documents                        accordance with, the terms and conditions of the Credit Agreement and the other Loan Documents;                                                 -13-                                                                                                                            -14-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                          provided that any such non-cash dividends, distributions, principal interest and other payments in                                     (f)     Except to the extent permitted by  clause (g) below, each Grantor shall take all         the form of Pledged Collateral shall, if received by any Grantor, be delivered to the Collateral Agent                   commercially reasonable actions and other actions required by applicable law or as  reasonably requested         as and to the extent required by Section 4.2.                                                                            by the Collateral Agent to maintain each of the registered United States Patents, Trademarks and Copyrights                                                                                                                                  (now or hereafter existing) included in the Collateral, except in cases where (i) the failure to do so would                (d)     Interests in Limited Liability Companies and Limited Partnerships.  Such Grantor                          not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) in the  agrees that no ownership interests in a limited liability company or a limited partnership which are included                   ordinary course of business consistent with past practice, such Grantor reasonably decides to abandon,  within the Collateral owned by such Grantor shall at any time constitute a Security under Article 8 of the                      allow to lapse or expire any Patent, Trademark or Copyright.  UCC of the applicable jurisdiction, unless all reasonable actions reasonably requested by the Collateral  Agent to continue the perfection of any Lien in favor of the Collateral Agent, on behalf of the Secured                                       (g)     Nothing in this Security Agreement shall prevent any Grantor from, disposing of,  Parties, in such Collateral has been completed or taken.                                                                        discontinuing the use or maintenance of, abandoning, failing to pursue, or otherwise allowing to lapse,                                                                                                                                  terminate or put into the public domain, any of its Collateral constituting Intellectual Property, if such                Section 4.5.   Intellectual Property.                                                                             Grantor  makes  a  reasonable  good  faith  determination  that  such  Intellectual  Property  is  no  longer                                                                                                                                  commercially reasonable to maintain or is not material to the conduct of the business of the Company and                (a)     Upon  the  occurrence  and  during  the  continuance  of an  Event  of  Default,  such                    its Restricted Subsidiaries taken as a whole.  Grantor  will  use  commercially  reasonable  efforts  to  secure  all  consents  and  approvals  necessary  or  appropriate for the assignment to or benefit of the Collateral Agent of any material IP License held by such                                  Section 4.6.   Commercial  Tort  Claims.   Such  Grantor  shall  promptly  notify  the  Grantor and to enforce the security interests granted hereunder.                                                                Collateral Agent of any Commercial Tort Claim for which such Grantor has filed complaint(s) in court(s)                 (b)     Subject  to  subsection  (g)  below,  such  Grantor  shall   not  (and  shall  cause  its                 enter  into  an  Amendment,  granting  to  the  Collateral  Agent  a  first  priority  security  interest  in  such  licensees not to do any act or omit to do any act whereby (i) any Trademark included in the Collateral and                      Commercial Tort Claim (subject to Permitted Liens).  The requirement in the preceding sentence shall not  constituting Material Intellectual Property may become invalid or unenforceable, (ii) any Patent included                       apply to the extent that the amount of such Commercial Tort Claim does not exceed $2,500,000 held by  in  the  Collateral  and  constituting  Material  Intellectual  Property  may  become  forfeited,  misused,                     each Grantor or to the extent such Grantor shall have previously notified the Collateral Agent with respect  unenforceable, abandoned or dedicated to the public, (3) any portion of the Copyrights included in the                          to any previously held or acquired Commercial Tort Claim.  Collateral and constituting Material Intellectual Property may become invalidated, otherwise impaired or  fall into the public domain or (4) any Trade Secret included in the Collateral and constituting Material                                      Section 4.7.   No Interference.  Such Grantor agrees that it will not interfere with any  Intellectual Property may become publicly available or otherwise unprotected.                                                   right, power and remedy of the Collateral Agent provided for in this Security Agreement or now or hereafter                                                                                                                                  existing at law or in equity or by statute or otherwise, or the exercise or beginning of the exercise by the                (c)     Such Grantor shall promptly notify the Collateral Agent promptly if it knows or                           Collateral Agent of any one or more of such rights, powers or remedies.  reasonably expects that any  Registered Intellectual Property (now or hereafter existing) included in the                                                                                                o                                               Section 4.8.   Insurance.  Except to the extent otherwise permitted to be retained by any                                                                                                                                  Grantor or applied by any Grantor pursuant to the terms of the Loan Documents, the Collateral Agent shall,  material Registered Intellectual Property, or to keep and maintain the same.                                                    at the time any proceeds of any insurance are distributed to the Secured Parties, apply such proceeds in                                                                                                                                  accordance with Section 7.02 of the Credit Agreement if an Event of Default has occurred and is continuing.                (d)     In the event that any Material Intellectual Property of such Grantor is or has been  infringed, misappropriated, violated, diluted or otherwise impaired by a third party, such Grantor shall, if                                                             ARTICLE V                                                                                                                                                            EVENTS OF DEFAULT AND REMEDIES  or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and  shall take such other actions as it considers commercially reasonable under the circumstances to protect                                      Section 5.1.   Remedies.  such Material Intellectual Property.                                                                                                                                                (a)     Upon  the  occurrence  and  during  the  continuation  of  an  Event  of  Default,  the                (e)     On the date hereof, and with respect to Copyrights, Trademarks or Patents filed,                          Collateral Agent may, and at the request of Required Lenders shall, exercise any or all of the following  obtained or acquired following the date hereof, on or prior to the earlier of the Determination Date and the                    rights and remedies:  date on which quarterly or annual financial statements are required to be delivered pursuant to Section 4.10  in  Annex  I  of  the  Credit  Agreement  in  respect  of  the  fiscal  period  in  which  the  relevant  Copyrights,                                 (i)    those rights and remedies provided in this Security Agreement, the Credit  Trademarks or Patents were filed, obtained or acquired (including any of the foregoing that were previously                            Agreement, or any other Loan Document; provided that, this Section 5.1(a) shall not be understood  filed, obtained or acquired, but that were, and are no longer, Excluded Assets) such Grantor shall execute                             to limit any rights or remedies available to the Collateral Agent and the other Secured Parties prior  and deliver to the Collateral Agent in form and substance reasonably acceptable to the Collateral Agent and                            to the occurrence of such Event of Default;  suitable for filing in the Applicable IP Office the respective Confirmatory Grant for all material Copyrights,  Trademarks, and Patents owned by such Grantor.                                                                                                        (ii)   those  rights  and  remedies  available  to  a  secured  party  under  the  UCC                                                                                                                                         (whether  or not  the  UCC  applies  to  the  affected  Collateral)  or  under any  other  applicable  law                                                 -15-                                                                                                                            -16-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                                                                                                                                                   the Securities Act of 1933, as amended, or under applicable state securities laws, even if the applicable         lien) when a debtor is in default under a security agreement;                                                            Grantor and the issuer would agree to do so.                         (iii)  give  notice  of  sole  control  or  any  other  instruction  under  any  control                                Section 5.2.                                             .  After the occurrence and         agreement  with  any  securities  intermediary  and  take  any  action  therein  with  respect  to  such                 during the continuance of an Event of Default, each Grantor will:         Collateral; and                                                                                                                                                (a)     assemble and make available to the Collateral Agent the Collateral and all books                        (iv)   without notice (except as specifically provided in Section 7.1 or elsewhere                        and  records  relating  thereto  at  any  place  or  places  specified  by  the  Collateral  Agent,  whether  at  such         herein), demand or advertisement of any kind to any Grantor or any other Person, enter the premises                                                                of any Grantor where any Collateral is located (through self-help and without judicial process) to         collect, receive, assemble, process, appropriate, sell, lease, assign, grant an option or options to                                   (b)         purchase or otherwise dispose of, deliver, or realize upon, the Collateral or any part thereof in one                    to enter, occupy and use any premises where all or any part of the Collateral, or the books and records         or more parcels at public or private sale or sales (which sales may be adjourned or continued from                       relating thereto, or both, are located, to take possession of all or any part of the Collateral or the books and                                                                                                                                  records relating thereto, or both, to remove all or any part of the Collateral or the books and records relating         cash, on credit or for future delivery without assumption of any credit risk, and upon such other                        thereto, or both, and to conduct sales of the Collateral, without any obligation to pay such Grantor for such         terms as the Collateral Agent may deem commercially reasonable.                                                          use and occupancy.                 (b)     The  Collateral  Agent,  on behalf  of  the  Secured  Parties, shall  comply  with  any                                 Section 5.3.   Grant of Intellectual Property License.  Solely for the purpose of enabling  applicable  state  or  federal  law  requirements  in  connection  with  a  disposition  of  the  Collateral  and               the Collateral Agent to exercise the rights and remedies under this Article V at such time as the Collateral  compliance will not be considered to adversely affect the commercial reasonableness of any sale of the                          Agent shall be lawfully entitled to exercise such rights and remedies in accordance with this Article V, each  Collateral.                                                                                                                     Grantor hereby grants to the Collateral Agent, for the benefit of the Collateral Agent and the other Secured                                                                                                                                  Parties,  a  nonexclusive  license  (exercisable  without  payment  of  royalty  or  other  compensation  to  any                (c)     The Collateral Agent shall have the right upon any such public sale or sales and,                         Grantor) to use, license or sublicense, following the occurrence and solely during the continuance of an  to  the extent  permitted  by  law, upon any  such  private  sale  or  sales, to  purchase  for the benefit  of the  Collateral Agent and the Secured Parties, the whole or any part of the Collateral so sold, free of any right                    completing production of, advertising for sale, and selling such Collateral, and, following the occurrence  of equity redemption, which equity redemption each Grantor hereby expressly releases.                                                                                                                                                                                        d pursuant to this Section 5.3 shall terminate                (d)     Until the Collateral Agent is able to effect a sale, lease, or other disposition of                       upon the termination of this Security Agreement.  In addition, each Grantor hereby irrevocably agrees that  Collateral, the Collateral Agent shall have the right to hold or use Collateral, or any part thereof, to the                    the  Collateral  Agent  may,  following  the  occurrence  and  solely  during  the  continuance  of  an  Event  of  extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose  deemed appropriate by the Collateral Agent.  The Collateral Agent may, if it so elects, seek the appointment                                                                Inventory from such Grantor and in connection with any   (for the benefit of the Collateral Agent and the other Secured Parties), with respect to such appointment                       Inventory which bears any Trademark owned by or licensed to such Grantor and any Inventory that  is  without prior notice or hearing as to such appointment.                                                                         covered by any Copyright owned by or licensed to such Grantor and the Collateral Agent may finish any                                                                                                                                  work in process and affix any Trademark owned by or licensed to such Grantor and sell such Inventory as                (e)     Notwithstanding the foregoing, neither the Collateral Agent nor any other Secured                         provided herein (subject to maintaining quality control standards sufficient to avoid invalidation of any  Party shall be required to (i) make any demand upon, or pursue or exhaust any of its rights or remedies                         such Trademarks).  against, any Grantor, any other obligor, guarantor, pledgor or any other Person with respect to the payment  of the Obligations or to pursue or exhaust any of its rights or remedies with respect to any Collateral therefor                                                         ARTICLE VI  or any direct or indirect guarantee thereof, (ii) marshal the Collateral or any guarantee of the Obligations                                    ACCOUNT VERIFICATION; ATTORNEY-IN-FACT; PROXY  or to resort to the Collateral or any such guarantee in any particular order, or (iii) effect a public sale of any  Collateral.                                                                                                                                   Section 6.1.   Account Verification.  After the occurrence and during the continuance of                                                                                                                                  an  Event  of Default, the Collateral  Agent  may,  in  the Coll               (f)     Each Grantor recognizes that the Collateral Agent may be unable to effect a public                        nominee of the Collateral Agent, or in the name of any Grantor communicate (by mail, telephone, facsimile  sale of any or all the Pledged Collateral and may be compelled to resort to one or more private sales thereof                   or otherwise) with the Account Debtors of any such Grantor to verify with such Persons, to the Collateral  in accordance with clause (a) above.  Each Grantor also acknowledges that any private sale may result in                        Ag prices and other terms less favorable to the seller than if such sale were a public sale and, notwithstanding                   Accounts owing by such Account Debtors to such Grantor (including Instruments, Tangible Chattel Paper,  such  circumstances,  agrees  that  any  such  private  sale  shall  not  be  deemed  to  have  been  made  in  a               payment intangibles and/or other Receivables that are Collateral relating to such Accounts).  commercially unreasonable manner solely by virtue of such sale being private.  The Collateral Agent shall  be under no obligation to delay a sale of any of the Pledged Collateral for the period of time necessary to  permit any Grantor or the issuer of the Pledged Collateral to register such securities for public sale under                                                 -17-                                                                                                                            -18-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                                 Section 6.2.   Authorization for the Collateral Agent to Take Certain Action.                                                   (c)     All acts of said attorney or designee pursuant to clause (a) above are hereby ratified                                                                                                                                  and approved.  The powers conferred on the Collateral Agent, for the benefit of the Collateral Agent and                (a)     Each Grantor authorizes the Collateral Agent, and appoints the Collateral Agent as                        the other Secured Parties, under this Section 6.2  its attorney-in-fact, provided that such appointment is irrevocable and coupled with an interest, and shall                     Collateral and shall not impose any duty upon the Collateral Agent or any other Secured Party to exercise  automatically terminate on the Termination Date or, if sooner, upon the termination or release of such                          any such powers.  Grantor hereunder pursuant to Section 7.14:                                                                                                                                                Section 6.3.   Proxy.   AFTER  THE  OCCURRENCE  AND  DURING  THE                        (i)    at  any  time  and  from  time  to  time,  (1)  to  file  financing  statements                    CONTINUANCE  OF  AN  EVENT  OF  DEFAULT,  EACH  GRANTOR  HEREBY  IRREVOCABLY                                                                                                                                  CONSTITUTES  AND  APPOINTS  THE  COLLATERAL  AGENT  AS  ITS  PROXY  AND                                                                  st in the Collateral and (2) to file a                          ATTORNEY-IN-FACT (AS SET FORTH IN SECTION 6.2(A)(II)) WITH RESPECT TO ITS PLEDGED         carbon, photographic or other reproduction of this Security Agreement or any financing statement                         COLLATERAL,  INCLUDING  THE  RIGHT  TO  VOTE  ANY  OF  THE  PLEDGED  COLLATERAL,         with respect to the Collateral as a financing statement and to file any other financing statement or                     WITH FULL POWER OF SUBSTITUTION TO DO SO IN ACCORDANCE WITH SECTION 4.4(C).          amendment of a financing statement (which does not add new collateral or add a debtor, in each                           IN  ADDITION  TO  SUCH  RIGHT  TO  VOTE  ANY  OF  THE  PLEDGED  COLLATERAL,  THE                                                                                                                                  APPOINTMENT OF THE COLLATERAL AGENT AS PROXY AND ATTORNEY-IN-FACT SHALL         reasonable discretion deems necessary or desirable to perfect and to maintain the perfection and                         INCLUDE, AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF                                                                                                                                  DEFAULT,  THE  RIGHT  TO  EXERCISE  ALL  OTHER  RIGHTS,  POWERS,  PRIVILEGES  AND                                                                                                                                  REMEDIES  TO  WHICH  A  HOLDER  OF  ANY  OF  THE  PLEDGED  COLLATERAL  WOULD  BE                        (ii)   after the occurrence and during the continuance of an Event of Default, (1)                        ENTITLED     (INCLUDING      GIVING     OR    WITHHOLDING        WRITTEN      CONSENTS       OF         to endorse and collect any cash proceeds of the Collateral, (2) to the extent such Grantor is required                   SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH         to provide Control hereunder, to contact and enter into one or more agreements with the issuers of                       MEETINGS).  SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE         uncertificated  Securities which are  Pledged Collateral or  with securities intermediaries holding                      NECESSITY  OF  ANY  ACTION  (INCLUDING  ANY  TRANSFER  OF  ANY  OF  THE  PLEDGED         Pledged Collateral as may be necessary or advisable, in the reasonable discretion of the Collateral                      COLLATERAL  ON  THE  RECORD  BOOKS  OF  THE  ISSUER  THEREOF)  BY  ANY  PERSON         Agent, to give the Collateral Agent Control over such Pledged Collateral, (3) to discharge past due                      (INCLUDING  THE  ISSUER  OF  THE  PLEDGED  COLLATERAL  OR  ANY  OFFICER  OR  AGENT         taxes, assessments, charges, fees or Liens on the Collateral (except for such Liens that are Permitted                   THEREOF),  SOLELY  DURING  THE  EXISTENCE  OF  AN  EVENT  OF  DEFAULT  AND  UPON         Liens),  except  as  otherwise  permitted  to  be  outstanding  pursuant  to  the  terms  of  the  Loan                  WRITTEN NOTICE BY THE COLLATERAL AGENT TO THE APPLICABLE GRANTOR.         Documents, (4) to contact Account Debtors in accordance with Section 6.1, (5) to demand payment         or enforce payment of the Receivables in the name of the Collateral Agent or such Grantor and to                                       Section 6.4.   Nature of Appointment; Limitation of Duty.  THE APPOINTMENT OF         endorse any and all checks, drafts, and other instruments for the payment of money relating to the                       THE  COLLATERAL  AGENT  AS  PROXY  AND  ATTORNEY-IN-FACT  IN  THIS  ARTICLE  VI  IS         Receivables,  (6)  to  s                                                                                                 COUPLED WITH AN INTEREST, SHALL BE IRREVOCABLE AND SHALL TERMINATE ON THE         Receivables, drafts against any Account Debtor of the Grantor, assignments and verifications of                          TERMINATION  DATE  OR,  IF  SOONER,  UPON  THE  TERMINATION  OR  RELEASE  OF  SUCH                                                                                     the collection                               GRANTOR  HEREUNDER  PURSUANT  TO  SECTION  7.14.   NOTWITHSTANDING  ANYTHING         of the Receivables and any other Collateral, (8) to settle, adjust, compromise, extend or renew the                      CONTAINED HEREIN, NONE OF THE COLLATERAL AGENT, ANY OTHER SECURED PARTY,         Receivables,  (9)  to  settle,  adjust  or  compromise  any  legal  proceedings  brought  to  collect         Receivables, (10) to prepare, file and sign such Gr                                                                      OFFICERS, DIRECTORS,  EMPLOYEES, AGENTS  OR REPRESENTATIVES  SHALL HAVE ANY         or similar document against any Account Debtor of such Grantor, (11) to prepare, file and sign such                      DUTY TO EXERCISE ANY RIGHT OR POWER GRANTED HEREUNDER OR OTHERWISE OR TO                                                                                                                                  PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR         connection  with  the  Receivables,  (12)  to  use  information  contained  in  any  data  processing,                   ANY DELAY IN DOING SO, EXCEPT IN RESPECT OF DAMAGES ATTRIBUTABLE TO ITS OWN         electronic or information systems relating to Collateral and (13) to do all other acts and things                        GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT AS FINALLY DETERMINED         necessary to accomplish the purposes of this Security Agreement.  Anything in this clause to the                         BY A COURT OF COMPETENT JURISDICTION; PROVIDED THAT, IN NO EVENT SHALL THEY         contrary notwithstanding, the Collateral Agent agrees that it will not exercise any rights under the                     BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES.         power of attorney provided for in this clause unless an Event of Default shall have occurred and be         continuing and after the expiration of any notice periods otherwise required hereunder or under any                                                              ARTICLE VII         other Loan Document.                                                                                                                                        GENERAL PROVISIONS                 (b)      Such  Grantor  agrees  to  reimburse  the  Collateral  Agent  on  demand  for  any                                     Section 7.1.   Waivers.  To the fullest extent permitted by applicable Law, each Grantor  reasonable and documented out-of-pocket payment made or any reasonable and documented out-of-pocket                             hereby:  expense incurred by the Collateral Agent in connection with any of the foregoing, in each case subject to  the limitations on reimbursement of costs and expenses set forth in Section 9.05(a) of the Credit Agreement;                                  (a)     waives notice of the time and place of any public sale or the time after which any  provided  that,  the  authorization  under  clause  (a)  above  shall  not  relieve  such  Grantor  of  any  of  its            private sale or other disposition of all or any part of the Collateral may be made, provided that, to the extent  obligations under this Security Agreement or under the Credit Agreement.                                                        such notice may not be waived under applicable law, any notice made shall be deemed reasonable if sent                                                 -19-                                                                                                                            -20-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                   to the Grantors, addressed as set forth in Article VIII, at least ten days prior to (i) the date of any such public  sale or (ii) the time after which any such private sale or other disposition may be made;                                       Collateral and that other actions or omissions by the Collateral Agent shall not be deemed commercially                                                                                                                                  unreasonable solely on account of not being indicated in this Section 7.2.  Without limitation upon the                (b)     waives all claims, damages, and demands against the Collateral Agent or any other                         foregoing, nothing contained in this Section 7.2 shall be construed to grant any rights to any Grantor or to  Secured Party arising out of the repossession, retention or sale of the Collateral (after the occurrence and                    impose any duties on the Collateral Agent that would not have been granted or imposed by this Security  during the continuance of an Event of Default), except such as arise out of the gross negligence, bad faith                     Agreement or by applicable law in the absence of this Section 7.2. In the performance of its obligations set  or willful misconduct of the Collateral Agent or such other Secured Party as finally determined by a court                      forth  herein,  the  Collateral  Agent  shall  have  all  of  the  rights,  benefits,  protections,  indemnities  and  of competent jurisdiction; and                                                                                                  immunities afforded to it under the Credit Agreement.                 (c)     absolutely and irrevocably waives and relinquishes the benefit and advantage of,                                        Section 7.3.   Compromises  and  Collection  of  Collateral.   The  Grantors  and  the  and covenants not to assert against the Collateral Agent or any other Secured Party, any valuation, stay,                       Collateral  Agent  recognize  that  setoffs,  counterclaims,  defenses  and  other  claims  may  be  asserted  by  appraisal, extension, moratorium, redemption or similar laws and any and all rights or defenses it may have                     obligors  with respect  to  certain  of  the  Receivables,  that  certain  of  the  Receivables  may  be  or  become  as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any                     uncollectible in whole or in part and that the expense and probability of success in litigating a disputed  Collateral  (after  the  occurrence  and  during  the  continuance  of  an  Event  of  Default)  made  under  the               Receivable may exceed the amount that reasonably may be expected to be recovered with respect to a  judgment, order or decree of any court, or privately under the power of sale conferred by this Security                         Receivable.  In view of the foregoing, each Grantor agrees that the Collateral Agent may at any time and  Agreement, or otherwise.                                                                                                        from time to time, if an Event of Default has occurred and is continuing, compromise with the obligor on                                                                                                                                  any Receivable, accept in full payment of any Receivable such amount as the Collateral Agent in its sole  Except as otherwise specifically provided herein, each Grantor hereby waives presentment, demand, protest                       discretion shall determine or abandon any Receivable, and any such action by the Collateral Agent shall be  or any notice (to the maximum extent permitted by applicable law) of any kind in connection with this                           commercially reasonable so long as the Collateral Agent acts in good faith based on information known to  Security Agreement or any Collateral.                                                                                           it at the time it takes any such action.                 Section 7.2.                                                                    h                                               Section 7.4.   Secured Party Performance of Debtor Obligations.  Without having any  Respect to the Collateral.  The Collateral Agent shall have no obligation to clean-up or otherwise prepare                      obligation to do so, at any time during the continuation of an Event of Default, the Collateral Agent may  the Collateral for sale.  The Collateral Agent and each other Secured Party shall use reasonable care with                      perform or pay any obligation which any Grantor has agreed to perform or pay in this Security Agreement  respect to the Collateral in its possession or under its control.  Neither the Collateral Agent nor any other                   and the Grantors shall reimburse the Collateral Agent for any amounts paid by the Collateral Agent pursuant  Secured Party shall have any other duty as to any Collateral in its possession or control or in the possession                  to this Section 7.4 in a or control of any agent or nominee of the Collateral Agent or such other Secured Party, or any income                           to reimburse the Collateral Agent pursuant to the preceding sentence shall be an Obligation payable on  thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto.  To the               demand.  extent that applicable law imposes duties on the Collateral Agent to exercise remedies in a commercially  reasonable  manner,  each  Grantor  acknowledges  and  agrees  that  it  is  commercially  reasonable  for  the                               Section 7.5.   Non-Lender Secured Parties.  Collateral  Agent  (i) to  fail  to  incur  expenses  deemed  significant  by  the  Collateral  Agent  to  prepare  Collateral for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of,                           (a)     Except as otherwise expressly set forth herein, no Non-Lender Secured Party that  or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the                   obtains the benefits of the Collateral by virtue of the provisions hereof shall have any right to notice of any  collection  or  disposition  of  Collateral  to  be  collected  or  disposed  of,  (iii) to  fail  to  exercise  collection     action or to consent to, direct or object to any action hereunder or under any other Loan Document or  remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any                          otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in  adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other                       its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents.  Persons  obligated  on  Collateral  directly  or  through  the  use  of  collection  agencies  and  other  collection  specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation,                                (b)     Each Non-Lender Secured Party, by its acceptance of the benefits of this Security  whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the                  Agreement and the other Security Documents, agrees that in exercising rights and remedies with respect to  same business as such Grantor, for expressions of interest in acquiring all or any portion of the Collateral,                   the Collateral, the Collateral Agent and the Lenders, with the consent of the Collateral Agent, may enforce  (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not                   the  provisions  of the Security Documents  and  exercise  remedies thereunder  and under any  other Loan  the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide             Documents (or refrain from enforcing rights and exercising remedies), all in such order and in such manner  for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing                 as they may determine in the exercise of their sole business judgment.  Such exercise and enforcement shall  so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets,              include, without limitation, the rights to collect, sell, dispose of or otherwise realize upon all or any part of  (x) to  disclaim  disposition  warranties,  such  as  title,  possession  or  quiet  enjoyment,  (xi) to  purchase              the Collateral, to incur expenses in connection with such collection, sale, disposition or other realization  insurance  or  credit  enhancements  to  insure  the  Collateral  Agent  against  risks  of  loss,  collection  or              and to exercise all the rights and remedies of a secured lender under the UCC as in effect from time to time  disposition of Collateral or to provide to the Collateral Agent a guaranteed return from the collection or                      in any applicable jurisdiction.  The Non-Lender Secured Parties by their acceptance of the benefits of this  disposition of Collateral, or (xii) to the extent deemed appropriate by the Collateral Agent, to obtain the                     Security Agreement and the other Security Documents hereby agree not to contest or otherwise challenge  services of other brokers, investment bankers, consultants and other professionals to assist the Collateral                     any such collection, sale, disposition or other realization of or upon all or any of the Collateral.  Whether  Agent in the collection or disposition of any of the Collateral.  Each Grantor acknowledges that the purpose                    or not a proceeding under Bankruptcy Law has been commenced, the Non-Lender Secured Parties shall be  of this Section 7.2 is to provide non-exhaustive indications of what actions or omissions by the Collateral                                                 -21-                                                                                                                            -22-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                   deemed to have consented to the release of any or all of the Collateral from the Liens of any Security                          performance of the Obligations, or any part thereof (including a payment effected through exercise of a  Document in connection therewith.                                                                                               right of setoff), is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored                                                                                                                                  or return               (c)     Each Non-Lender Secured Party, by its acceptance of the benefits of this Security                         or otherwise (including pursuant to any settlement entered into by a Secured Party in its discretion), all as  Agreement, agrees that the Collateral Agent and the Lenders may deal with the Collateral, including any                         though such payment or performance had not been made.  In the event that any payment, or any part thereof  exchange, taking or release of Collateral, may change or increase the amount of the Obligations, and may                        (including  a  payment  effected  through  exercise  of  a  right  of  setoff),  is  rescinded,  reduced,  restored  or  release any Grantor from its obligations hereunder, all without any liability or obligation (except as may be                   returned, the Obligations shall be reinstated and deemed reduced only by such amount paid and not so  otherwise expressly provided herein) to the Non-Lender Secured Parties.                                                         rescinded, reduced, restored or returned.                 Section 7.6.   Additional  Grantors.   Each  Restricted  Subsidiary  that  is  required  to                                     Section 7.10.  Benefit  of  Agreement.   The  terms  and  provisions  of  this  Security  become a party to this Security Agreement pursuant to Section 5.14 of the Credit Agreement, and each                            Agreement shall be binding upon and inure to the benefit of the Grantors, the Collateral Agent and the other  Subsidiary  of  the  Borrower  that  elects  to  become  a  party  to  this  Security  Agreement,  shall  become  a             Secured Parties and their respective successors and assigns (including all persons who become bound as a  Subsidiary  Grantor,  with  the  same  force  and  effect  as  if  originally  named  as  a  Grantor  herein,  for  all         debtor to this Security Agreement), except that no Grantor shall have the right to assign its rights or delegate  purposes  of  this  Security  Agreement  upon  execution  and  delivery  by  such  Subsidiary  of  a  written                   its obligations under this Security Agreement or any interest herein, without the prior written consent of the  supplement substantially in the form of Annex I hereto.  The execution and delivery of any instrument                           Collateral Agent or as otherwise permitted by the Loan Documents.  No sales of participations, assignments,  adding an additional Grantor as a party to this Security Agreement shall not require the consent of any other                   transfers, or other dispositions of any agreement governing the Obligations or any portion thereof or interest  Grantor hereunder.  The rights and obligations of each Grantor hereunder shall remain in full force and                         therein shall in any manner impair the Lien granted to the Collateral Agent, for the benefit of the Collateral  effect notwithstanding the addition of any new Grantor as a party to this Security Agreement.                                   Agent and the other Secured Parties, hereunder.                 Section 7.7.   No Waiver; Amendments; Cumulative Remedies.  No delay or omission                                                Section 7.11.  Survival  of  Representations.   All  representations  and  warranties  of  the  of  the  Collateral  Agent  or  any other Secured Party to exercise any right or remedy  granted  under this                    Grantors contained in this Security Agreement shall survive the execution and delivery of this Security  Security Agreement shall impair such right or remedy or be construed to be a waiver of any Default or an                        Agreement.  acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude any  other or further exercise thereof or the exercise of any other right or remedy.  Except as provided herein                                    Section 7.12.  Expenses; Indemnity.  (including in Sections 4.2(d), and 4.6), no waiver, amendment or other variation of the terms, conditions or  provisions of this Security Agreement whatsoever shall be valid unless in writing signed by the Collateral                                    (a)     The Grantors shall reimburse the Collateral Agent for any and all reasonable and  Agent with the concurrence or at the direction of the Lenders required under Section 9.08 of the Credit                         documented out-of-pocket expenses (including reasonable att Agreement  and  then  only  to  the  extent  in  such  writing  specifically  set  forth.   Neither  this  Security             reasonable time charges of attorneys, paralegals, auditors and accountants who may be employees of the  Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement                           Collateral Agent) paid or incurred by the Collateral Agent in connection with the preparation, execution,  or agreements in writing entered into by the Collateral Agent, Parent, the Borrower and the other Grantor                       delivery, administration, collection and enforcement of this Security Agreement and in the audit, analysis,  or Grantors with respect to which such waiver, amendment or modification is to apply, subject to any                            administration, collection, preservation or sale of the Collateral, in each case, in accordance with and subject  consent  required  in  accordance  with  Section  9.08  of  the  Credit  Agreement.   All  rights  and  remedies                to the limitations set forth in Section 9.05(a) of the Credit Agreement.  Any and all costs and expenses  contained in this Security Agreement or by law afforded shall be cumulative and all shall be available to                       incurred by the Grantors in the performance of actions required pursuant to the terms hereof shall be borne  the Collateral Agent and the other Secured Parties until the Final Release Conditions have been satisfied.                      solely by the Grantors.                 Section 7.8.   Limitation by Law; Severability of Provisions.  All rights, remedies and                                         (b)     Each Grantor hereby agrees to indemnify the Indemnitees in accordance with and  powers provided in this Security Agreement may be exercised only to the extent that the exercise thereof                        subject to the limitations set forth in Section 9.05(b) of the Credit Agreement.  does not violate any applicable provision of law, and all the provisions of this Security Agreement are  intended to be subject to all applicable mandatory provisions of Law that may be controlling and to be                                        Section 7.13.  Headings.  The title of and section headings in this Security Agreement  limited to the extent necessary so that they shall not render this Security Agreement invalid, unenforceable                    are  for  convenience of  reference  only,  and  shall  not  govern  the  interpretation  of  any  of the  terms  and  or not entitled to be recorded or registered, in whole or in part.  Any provision in this Security Agreement                    provisions of this Security Agreement.  that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be  inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the                                 Section 7.14.  Termination; Release.  operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions  of this Security Agreement are declared to be severable.                                                                                      (a)     This Security Agreement shall remain in full force and effect and be binding in                                                                                                                                  accordance with and to the extent of its terms upon each Grantor and the successors and assigns thereof and                Section 7.9.   Reinstatement.  This Security Agreement shall remain in full force and                             shall  inure  to  the  benefit  of  the  Collateral  Agent  and  the  other  Secured  Parties  and  their  respective  effect and continue to be effective should any petition be filed by or against any Grantor for liquidation or                   successors, indorsees, transferees and assigns permitted under the Credit Agreement until the Termination  reorganization, should any Grantor become insolvent or make an assignment for the benefit of any creditor                       Date.   assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and                                                 -23-                                                                                                                            -24-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                                 (b)     A  Grantor  shall  be  released  from  its  obligations  hereunder  if  it  ceases  to  be  a             mail.  Nothing in this Security Agreement will affect the right of any party to this Security Agreement to  Guarantor in accordance with Section 12 of the Facility Guaranty and Section 9.20 of the Credit Agreement.                      serve process in any other manner permitted by law.                 (c)     The security interest granted hereby in any Collateral shall be released to the extent                                  Section 7.18.  WAIVER  OF  JURY  TRIAL.  EACH  PARTY  HERETO  HEREBY  provided in Section 9.20 of the Credit Agreement.  Any such release in connection with any sale, transfer                       WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT  or  other disposition of such Collateral permitted under the  Credit Agreement to a Person  that is  not  a                     MAY  HAVE  TO  A  TRIAL  BY  JURY  IN  RESPECT  OF  ANY  LITIGATION  DIRECTLY  OR  Guarantor shall result in such Collateral being sold, transferred or disposed of, as applicable, free and clear                 INDIRECTLY  ARISING  OUT  OF,  UNDER  OR  IN  CONNECTION  WITH  THIS  SECURITY  of the Lien and security interest created hereby.                                                                               AGREEMENT.   EACH  PARTY  HERETO  (A)  CERTIFIES  THAT  NO  REPRESENTATIVE,                                                                                                                                  AGENT  OR  ATTORNEY  OF  ANY  OTHER  PARTY  HAS  REPRESENTED,  EXPRESSLY  OR                (d)     In connection with any termination or release pursuant to the foregoing clause (a),                       OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,  (b) or (c), the Collateral Agent shall execute and deliver to any                                                               SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND  documents that such Grantor shall reasonably request to evidence such termination or release, subject to,                       THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS SECURITY                                                                                                                                  AGREEMENT  BY,  AMONG  OTHER  THINGS,  THE  MUTUAL  WAIVERS  AND  with Section 9.20 of the Credit Agreement.  Any execution and delivery of documents pursuant to this                            CERTIFICATIONS IN THIS                     .  Section 7.14 shall be without recourse to or warranty by the Collateral Agent.                                                                                                                                                Section 7.19.  Intercreditor Agreement.  Notwithstanding anything herein to the contrary,                Section 7.15.  Entire  Agreement.   This  Security  Agreement  embodies  the  entire                              the Liens and security interests granted to the Collateral Agent pursuant to this Security Agreement and the  agreement and understanding between the Grantors and the Collateral Agent relating to the Collateral and                        exercise of any right or remedy by the Collateral Agent hereunder, are subject to the provisions of any  supersedes all prior agreements and understandings between the Grantors and the Collateral Agent relating                       Closing Date Intercreditor Agreement or any other additional Intercreditor Agreement.  In the event of any  to the Collateral.                                                                                                              conflict  between  the  terms  of  any  such  Closing  Date  Intercreditor  Agreement  or  any  other  additional                                                                                                                                  Intercreditor Agreement and the terms of this Security Agreement, the terms of any such Closing Date                Section 7.16.  CHOICE  OF  LAW.      THIS  SECURITY  AGREEMENT  AND  THE                                          Intercreditor Agreement or any other such additional Intercreditor Agreement shall govern and control.  No  RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,                                                           right, power or remedy granted to the Collateral Agent hereunder shall be exercised by the Collateral Agent,  AND  CONSTRUED  AND  INTERPRETED  IN  ACCORDANCE  WITH,  THE  LAW  OF  THE                                                      and  no  direction  shall  be  given  by  the  Collateral  Agent,  in  contravention  of  any  such  Closing  Date  STATE OF NEW YORK.                                                                                                              Intercreditor Agreement or any other additional Intercreditor Agreement.                 Section 7.17.  Consent to Jurisdiction.                                                                                         Section 7.20.  Counterparts.  This Security Agreement may be executed in any number                                                                                                                                  of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto                (a)     Each party hereto hereby irrevocably and unconditionally submits, for itself and                          may execute this Security Agreement by signing any such counterpart.  Delivery of an executed counterpart  its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States                   of  a  signature  page  of  this  Security  Agreement  by  facsimile  or  other  electronic  transmission  shall  be  of  America  sitting  in  New  York  County,  and  any  appellate  court  from  any  thereof,  in  any  action  or              effective as delivery of a manually executed counterpart of this Security Agreement.  proceeding arising out of or relating to this Security Agreement, or for recognition or enforcement of any  judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in                                                               ARTICLE VIII  respect of any such action or proceeding may be heard and determined in such New York State or, to the                                                                    NOTICES  extent permitted by law, in such Federal court.  Each of the parties hereto 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                                   Section 8.1.   Sending Notices.  Any notice required or permitted to be given under this  judgment or in any other manner provided by law.  Nothing in this Security Agreement shall affect any                           Security Agreement shall be sent in accordance with Section 9.01 of the Credit Agreement.  right that the Collateral Agent or any Lender may otherwise have to bring any action or proceeding relating  to this Security Agreement against any Grantor or its properties in the courts of any jurisdiction if required                                Section 8.2.   Change in Address for Notices.  Each of the Grantors, the Collateral Agent  to realize upon the Collateral as determined in good faith by the Person bringing such action or proceeding.                    and the Lenders may change the address for service of notice upon it by a notice in writing to the other                                                                                                                                  parties.                (b)     Each party hereto hereby irrevocably and unconditionally waives, to the fullest  extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying                                                              ARTICLE IX  of venue of any suit, action or proceeding arising out of or relating to this Security Agreement in any New                                                      THE COLLATERAL AGENT  York State or Federal court sitting in New York County.  Each of the parties hereto hereby irrevocably  waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of                                    Section 9.1.   Appointment.   Deutsche  Bank  Trust  Company  Americas  has  been  such action or proceeding in any such court.                                                                                    appointed Collateral Agent for the other Secured Parties hereunder pursuant to Article VIII of the Credit                                                                                                                                  Agreement, by the Lenders under the Credit Agreement and, by their acceptance of the benefits of the Loan                (c)     Each party to this Security Agreement irrevocably consents to service of process                          Documents, the other Secured Parties.  It is expressly understood and agreed by the parties to this Security  in the manner provided for notices in Section 9.01 of the Credit Agreement excluding service of process by                      Agreement that any authority conferred upon the Collateral Agent hereunder is subject to the terms of the                                                                                                                                  delegation  of  authority  made  by  the  Secured  Parties  to  the  Collateral  Agent  pursuant  to  the  Credit                                                 -25-                                                                                                                            -26-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                   Agreement, and that the Collateral Agent has agreed to act (and any successor Collateral Agent shall act)                       of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent, it is understood  as such hereunder only on the express conditions contained in such Article VIII.  Any successor Collateral                      that in all cases the Collateral Agent shall be fully justified in failing or refusing to take any such action  Agent appointed pursuant to Article VIII of the Credit Agreement shall be entitled to all the rights, interests                 under this Agreement if it shall not have received such written instruction, advice or concurrence of the  and benefits of the Collateral Agent hereunder.                                                                                 Administrative Agent, as it deems appropriate.  This provision is intended solely for the benefit of the                                                                                                                                  Collateral Agent and its successors and permitted assigns and is not intended to and will not entitle the other                Section 9.2.   Resignation;  Removal;  Successors  and  Assigns.   Written  notice  of                            parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.  resignation by the Collateral Agent pursuant to Article VIII of the Credit Agreement shall also constitute  notice of resignation as Collateral Agent under this Security Agreement; removal of the Collateral Agent                                                           [Signature Pages Follow]  shall  also  constitute  removal  under  this  Security  Agreement;  and  appointment  of  a  Collateral  Agent  pursuant to Article VIII of the Credit Agreement shall also constitute appointment of a successor Collateral  Agent under this Security Agreement.  Upon the acceptance of any appointment as Collateral Agent under  Article VIII of the Credit Agreement by a successor Collateral Agent, that successor Collateral Agent shall  thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or  removed Collateral Agent under this Security Agreement, and the retiring or removed Collateral Agent  under this  Security  Agreement shall promptly (i) transfer to such  successor Collateral Agent all sums,  securities  and  other  items  of  Collateral  held  hereunder,  together  with  all  records  and  other  documents  necessary or appropriate in connection with the performance of the duties of the successor Collateral Agent  under this Security Agreement and (ii) execute and deliver to such successor Collateral Agent or otherwise  authorize the filing of such amendments to financing statements and take such other actions, as may be  necessary  or  appropriate  in  connection  with  the  assignment  to  such  successor  Collateral  Agent  of  the  security  interests  created  hereunder,  whereupon  such  retiring  or  removed  Collateral  Agent  shall  be  discharged from its duties and obligations under this Security Agreement.  After any retiring or removed  Collateral A Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it under this Security  Agreement while it was Collateral Agent hereunder.                 Section 9.3.   Th                                    .  The Collateral Agent shall be  obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from  exercising any rights, and to take or refrain from taking any action (including the release or substitution of  Collateral), solely in accordance with this Security Agreement and the Credit Agreement; provided that the  Collateral Agent shall exercise, or refrain from exercising, any remedies provided for in  Section 5.1 in  accordance with the instructions of Required Lenders.  In furtherance of the foregoing provisions of this  Section 9.3, each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right  individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured  Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit  of  the  Secured  Parties  in  accordance  with  the  terms  of  this  Section  9.3.   Each  Secured  Party,  by  its  acceptance of the benefits hereof, agrees that any action taken by the Collateral Agent in accordance with  the provisions of the Security Documents, and the exercise by the Collateral Agent of any rights or remedies  set  forth  therein,  together  with  all  other  powers  reasonably  incidental  thereto,  shall  be  authorized  and  binding upon all Secured Parties.                 Section 9.4.   Extensions.  The Collateral Agent shall be entitled, without further consent  required from any other Secured Party, to grant extensions of time for the creation and perfection of security  interests in, or obtaining or delivery of documents or other deliverables with respect to, particular assets of  any Grantor where it determines that such action cannot be accomplished without undue effort or expense  by the time or times at which it would otherwise be required to be accomplished by this Security Agreement  or any other Loan Documents. Notwithstanding anything else to the contrary herein, whenever reference is  made in this Agreement to any discretionary action by, consent, designation, specification, requirement or  approval  of,  notice,  request  or  other  communication  from,  or  other  direction  given  or  action  to  be  undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision,  opinion, acceptance, use of judgment, expression of satisfaction, reasonable satisfaction or other exercise                                                 -27-                                                                                                                            -28-  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 












 






                                                                                                                                                                             EXHIBIT A                                                                                                                                                                                                                                                         EXHIBIT B                  OFFICES IN WHICH FINANCING STATEMENTS HAVE BEEN FILED                                                                                                                                  NOTICE ADDRESS FOR ALL GRANTORS, TO GRANTOR REPRESENTATIVE:  Name                                             Jurisdiction of Organization  BidFair MergeRight Inc.                          Delaware                                                                              BidFair MergeRight Inc.  BidFair Holdings Inc.                            Delaware                                                                              c/o Ken Lefkowitz                                                                                                                                         Hughes Hubbard & Reed LLP                                                                                                                                         One Battery Park Plaza                                                                                                                                         New York, NY 10004                                                                                                                                         Attention: Jean-Luc Berrebi                                                                                                                                                                                                                                                                                  With a copy that shall not constitute notice to:                                                                                                                                                                                                                                                                                  Michael Kazakevich                                                                                                                                         Michael.Kazakevich@ropesgray.com                                                                                                                                         +44-(0)7917-640894                                                                                                                                         Ropes & Gray LLP, 60 Ludgate Hill, 3rd floor, London,EC4M 7AW                                                                                                                                                                                                                                                                                  Alexandru Mocanu                                                                                                                                         Alexandru.Mocanu@ropesgray.com                                                                                                                                         +44-(0)7546-458748                                                                                                                                         Ropes & Gray LLP, 60 Ludgate Hill, 3rd floor, London,EC4M 7AW                                                                                                                                                                                                                                                                           I. INFORMATION AND COLLATERAL LOCATIONS                                                                                                                                   Grantor          Address of    County    Jurisdiction    Type of         State      Federal                                                                                                                                                   Chief                   of              Organization    Entity     Employer                                                                                                                                                   Executive               Organization                    ID         Identification                                                                                                                                                   Offices                                                 Number     Number                                                                                                                                  BidFair          Hughes        NY        Delaware        Corporation     N/A        37-1947586                                                                                                                                  MergeRight Inc.  Hubbard &                                                                                                                                                   Reed LLP                                                                                                                                                   One Battery                                                                                                                                                   Park Plaza                                                                                                                                                   New York,                                                                                                                                                   NY 10004                                                                                                                                  BidFair          Hughes        NY        Delaware        Corporation     N/A        61-1944740                                                                                                                                  Holdings Inc.    Hubbard &                                                                                                                                                   Reed LLP                                                                                                                                                   One Battery                                                                                                                                                   Park Plazea                                                                                                                                                   New York,                                                                                                                                                   NY 10004                                                                                                                                                                                                                                                                     II.    LOCATIONS OF COLLATERAL:                                                                                                                                   In addition to the locations identified above, Collateral may also be located at the following premises:                                                                                                                                  N/A.   77905783_4                                                                                                                      77905783_4 





 






                                                                                                                                                                                                                                                                                                                                           EXHIBIT C                                                                                                                                         TANGIBLE CHATTEL PAPER   III.   LEASED COLLATERAL LOCATIONS                                                                                                              None.  N/A                                                                                                            IV.   BAILEE/WAREHOUSE COLLATERAL LOCATIONS     N/A    V. PRIOR NAMES    N/A    77905783_4                                                                                                 77905783_4 





 






                                                                                                                                                                                                                                                                                                                                                                                                                                                           EXHIBIT D-1                                                                                                                     EXHIBIT D-2                                                                                                                                                             U.S. REGISTERED INTELLECTUAL PROPERTY                                                                             INTELLECTUAL PROPERTY REGISTERED IN COVERED JURISDICTIONS                                                                                                                                                                                                                                                                                                                                                                                                       U.S. Registered Trademarks                                                                                                        Registered Trademarks                                                None.                                                                                                                           None.                                        U.S. Registered Patents                                                                                                           Registered Patents                                                None.                                                                                                                           None.                                      U.S. Registered Copyrights                                                                                                        Registered Copyrights                                                None                                                                                                                            None                                                                                                                                                                                     77905783_4                                                                                                                      77905783_4 





 






                                                                                                                                                                             EXHIBIT E                                                                                                                       EXHIBIT F                                      PLEDGED COLLATERAL                                                                                                                                                                                                                                      (See Section 4.2 and 4.6 of Security Agreement)                                                                                       Type of                                           Percentage                                                                         AMENDMENT           Entity Name                            Jurisdiction         Owner                                     Entity                                              Owned      BidFair MergeRight Inc.      Corporation     Delaware      BidFair Holdings Inc.   100%                                     This Amendment, dated ________________, ___ is delivered pursuant to [Section 4.2] [Section 4.6] of the                                                                                                                                  Security Agreement referred to below.  All defined terms herein shall have the meanings ascribed thereto                                                                                                                                  or incorporated by reference in the Security Agreement.  The undersigned agrees that this Amendment may                                                                                                                                  be  attached  to  that  certain  Pledge  and  Security  Agreement,  dated  as  of  October  2,  2019,  between  the                                                                                                                                  undersigned, as the Grantors, and Deutsche Bank Trust Company Americas, as the Collateral Agent (as                                                                                                                                  amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the                                                                                                                                   Security Agreement                                                                                                                                     By:                                                                                                                                                                                                                                                                    Name:                                                                                                                                                                                                                                                                                                          Title:                                                                                                                                                                                     H-1                                                                                                                                  EU-DOCS\25892880.7  77905783_4                                                                                                                      76852875_12 





 






                                                                                                                                                    ANNEX I TO PLEDGE AND SECURITY AGREEMENT          Reference  is  hereby  made  to  the  Pledge  and  Security  Agreement  (as  amended,  restated,                                                         Security Agreement 2019  by  and  among  BIDFAIR  HOLDINGS  INC.,  a  Delaw                     Parent   BIDFAIR  MERGERIGHT INC.                             Merger Sub                                                    Company              Borrower        other Loan Parties signatory hereto as Grantors and any additional entities  which become parties to this Security Agreement by executing a Security Agreement Supplement hereto in  substantially  the  form  hereof  (such  additional  entities,  together  with  such  other  Loan  Parties,  each  a   Grantor                      Grantors      DEUTSCHE BANK TRUST COMPANY AMERICAS,  in its capacity as collateral agent (in such capacity, together with any successor collateral agent appointed  pursuant to the Credit Agreemen                    Collateral Agent Parties under the Credit Agreement.  Each capitalized term used herein and not defined herein shall have  the meanings given to it in the Security Agreement.          By  its  execution  below,  the  undersigned,  [NAME  OF  NEW  GRANTOR],  a  [__________________________]  [corporation]  [partnership]  [limited  liability  company   New  Grantor to be bound by such Security Agreement as if originally a party thereto.  The New Grantor hereby pledges,  assigns and grants to the Collateral Agent, on behalf of and for the ratable benefit of the Secured Parties, a                                                  e and interest in and to the Collateral, whether now  owned  or  hereafter  acquired,  to  secure  the  prompt  and  complete  payment  and  performance  of  the  Obligations.          By  its  execution  below,  the  New  Grantor  represents  and  warrants  as  to  itself  that  all  of  the  representations and warranties contained in the Security Agreement are true and correct in all respects as  of the date hereof.  The New Grantor represents and warrants that the supplements to the Exhibits to the  Security Agreement attached hereto are true and correct in all respects and such supplements set forth all  information required to be scheduled under the Security Agreement. The New Grantor shall take all steps  necessary to perfect, in favor of the Collateral Agent, a first-priority security interest in and lien against the   under the Security Agreement.           IN  WITNESS  WHEREOF,  [NAME  OF  NEW  GRANTOR],  a  [__________________]  [corporation]  [partnership]  [limited  liability  company]  has  executed  and  delivered  this  Annex  I  counterpart to the Security Agreement as of this ___________ day of ____________, ____.                                                      [NAME OF NEW GRANTOR]                                                      By:                                                     Name:                                                       Title:                                                    1                                                                                                                               1  EU-DOCS\25892880.7                                                                                                              EU-DOCS\25892880.7  76852875_12                                                                                                                     76852875_12 





 






                                                                                                                                                                               [FORM OF]                                                                             reissues,  reexaminations,  renewals  and  extensions  of  the  foregoing,  and  all  income,  royalties,  and                                                                                                                                    proceeds at any time due or payable or asserted under or with respect to any of the foregoing or otherwise             CONFIRMATORY GRANT OF SECURITY INTEREST IN UNITED STATES                                                               with respect to such [Trademarks] [Patents] [Copyrights] throughout the world, including all rights to sue                            [TRADEMARKS] [PATENTS][COPYRIGHTS]                                                                      or  recover  at  law  or  in  equity  for  any  past,  present  or  future  infringement,  misappropriation,  dilution,                                                                                                                                    violation or other impairment thereof, and, in each case, all other rights accruing thereunder or pertaining                  THIS CONFIRMATORY GRANT OF SECURITY INTEREST IN UNITED STATES                                                     thereto throughout the world (including all rights of priority and all rights to obtain any of the foregoing    [TRADEMARKS] [PATENTS] [COPYRIGHTS] (as the same may be amended, restated, supplemented                                         rights throughout the world).                                                Agreement                                                                              Grantor                  Grantors                                          ompany Americas for                                               (c)     Notwithstanding  anything to the contrary  contained above,  the  security  interest    itself  and  as  Collateral  Agent  for  the  Secured  Parties  (as  defined  in  the  Credit  Agreement  referenced            created by this Agreement shall not extend to Excluded Assets.                                 Grantee                                                                                                                                             3)     Grants,  Rights,  Remedies.  This  Agreement  has  been  executed  in  conjunction  with  the                                                                                                                                      security  interest  granted  under  the  Security  Agreement  to  the  Grantee  for  the  benefit  of  the  Secured                  WHEREAS,  the  Grantor,  the  other  Loan  Parties,  the  Lenders,  and  the  Grantee  have                                                                                                                                    Parties. The  rights and remedies of the  Grantee with respect to the security  interest  granted herein  are    entered  i                                                                                                                                   without prejudice to and are in addition to those set forth in the Security Agreement and the other Loan                                                          Credit Agreement                                                                                                                                       Documents, all terms and provisions of which are incorporated herein by reference. In the event that any                    WHEREAS,  the  Grantor  and  certain  other  Loan  Parties  have  entered  into  that  certain    Pled                                          Security Agreement                          WHEREAS, the Grantor owns the [Trademarks] [Patents] [Copyrights] listed on Exhibit    A, which have been applied for[, issued by,] or registered with the [United States Patent and Trademark    Office] [United States Copyright Office];                                    WHEREAS,  pursuant  to  the  Security  Agreement,  the  Grantor  pledged,  assigned  and    granted  to  the  Grantee  a  security  interest  in  all  of  its  right,  title  and  interest  in,  to,  and  under  its    Intellectual Property, including its [Trademarks] [Patents] [Copyrights], and agreed to execute and deliver    this Agreement for purposes of filing in the [United States Patent and Trademark Office] [United States    Copyright Office].                    NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth    herein  and  for  other  good  and  valuable consideration,  the  receipt  and  sufficiency  of  which  are  hereby    acknowledged, it is hereby agreed that:             1)     Definitions. All capitalized terms used and not otherwise defined herein shall have the    respective  meaning  given  to  them  in  the  Credit  Agreement,  or  if  not  defined  therein,  in  the  Security    Agreement.             2)     The Security Interest.                    (a)     This Agreement is made to secure the satisfactory performance and payment of    the  Obligations.  Upon  termination  of  the  Security  Agreement  pursuant  to  its  express  terms,  this    Agreement  shall  automatically  terminate  and  all  rights  the  Grantee  may  have  in,  to  or  under  the    [Trademarks]  [Patents]  [Copyrights]  shall  automatically  revert  in  full  to  the  Grantor.  Upon  such    termination, the Grantee shall promptly, execute, acknowledge, and deliver to the Grantor all reasonably    requested  instruments  in  writing  and  do  such  other  acts  as  may  be  reasonably  necessary  to  effect  the    release  of  (and  evidence  and  record  the  release  of)  the  Lien  and  security  interest  in  the  [Trademarks]    [Patents] [Copyrights] acquired under the Security Agreement and this Agreement.                    (b)     The Grantor hereby pledges, assigns and grants to the Grantee, on behalf of and     interest,  to  and  under  the  [Trademarks]  [Patents]  [Copyrights]  listed  on  Exhibit A,  and,  to  the  extent    applicable, all foreign counterparts to, and all divisionals, reversions, continuations, continuations-in-part,   77932633_1                                                                                                                      77932633_1  EU-DOCS\26075250.277932633_2                                                                                                    EU-DOCS\26075250.277932633_2 





 






                                                                                                                                      provisions of this Agreement are deemed to conflict with the Security Agreement, the provisions of the                            Security Agreement shall govern and control.                                                                                             IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day                                                                                                                                     and year first above written.           4)     Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, INTERPRETED    UNDER AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AND NOT THE                                                            LAW  OF  CONFLICTS)  OF  THE  STATE  OF  NEW  YORK,  BUT  GIVING  EFFECT  TO  FEDERAL                                                                                              LAWS APPLICABLE TO NATIONAL BANKS.                                                                                                                                                                                                                                                                                                                                     5)     Counterparts.  This  Agreement  may  be  executed  in  any  number  of  counterparts,  all  of                                                                                                                                                                                                                                                    which  taken  together  shall  constitute  one  agreement,  and  any  of  the  parties  hereto  may  execute  this                                                                                                                                                                                By:   ______________________    Agreement by signing any such counterpart. Delivery of an executed counterpart of a signature page of                                                                             Name:    this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually                                                                         Title:    executed counterpart of this Agreement.                                                                                                                                                                                                                                                                                                                                                                    *******                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             By:   ______________________                                                                                                                                                                                      Name:                                                                                                                                                                                      Title:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                77932633_1                                                                                                                                  EU-DOCS\26075250.277932633_2  Signature Page to Trademark Security Agreement   77932633_1  EU-DOCS\26075250.277932633_2 





 






                                                                                                                                     DEUTSCHE BANK TRUST                                                                                                               COMPANY AMERICAS                                                                                                                                                            Exhibit A    as Collateral Agent                                                                                                                                                                    [Trademarks] [Patents] [Copyrights]                                                                                                                                     By:                                                                                                                                    Name:                                                                                                                             Title:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               77932633_1  EU-DOCS\26075250.277932633_2                                Signature Page to Trademark Security Agreement                                                                                                                                  77932633_1                                                                                                                                  EU-DOCS\26075250.277932633_2 





 






                                                                                                                                                                                       Exhibit G                          the ordinary course of business. The Lender may also attach schedules to this Note and endorse                                                              to the Credit Agreement                        thereon  the  date,  amount  and  maturity  of  its  Loans  and  payments  with  respect  thereto.                                                                                                              Notwithstanding the foregoing, the failure of the Lender to so evidence the Loan or to attach                            FORM OF PROMISSORY NOTE                                                          such schedules shall not in any manner affect the obligation of the Borrower to make payments                                                                                                             of principal and interest in accordance with the terms of this Note and the Credit Agreement.  THIS  NOTE  AND  THE  OBLIGATIONS  REPRESENTED  HEREBY  MAY  NOT  BE  TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF                                                This  Note is one of the promissory notes referred to  in the Credit Agreement, which,  THE CREDIT AGREEMENT REFERRED TO BELOW.  TRANSFERS OF THIS NOTE AND                                        among  other  things,  contains  provisions  for  the  acceleration  of  the  maturity  hereof  upon  the  THE  OBLIGATIONS  REPRESENTED  HEREBY  MUST  BE  RECORDED  IN  THE                                         happening of certain events, for optional and mandatory prepayment of the principal hereof prior  REGISTER  MAINTAINED  BY  THE  ADMINISTRATIVE  AGENT  PURSUANT  TO  THE                                    to  the  maturity  hereof  and  for  the  amendment  or  waiver  of  certain  provisions  of  the  Credit  TERMS OF SUCH CREDIT AGREEMENT.                                                                            Agreement, all upon the terms and conditions therein specified.                                                                      [            ], 20[  ]                        The  Borrower,  for  itself,  its  successors  and  assigns,  hereby  waives  diligence,                                                                                                             presentment, protest and demand and notice of protest, demand, dishonor and non-payment of                                                  Borrower                                                   this Note.  [_                                                          Lender with  the  provisions  of  the  Credit  Agreement  (as  hereinafter  defined),  the  principal  amount  of         [__________] in the installments referred to below.                                                                                                                                                                The Borrower promises to pay interest on the unpaid principal amount of the Loan made  by the Lender from the date of such Loan until such principal amount is paid in full, at such                                       [Remainder of page intentionally left blank]  interest rates and at such times as provided in the Credit Agreement, dated as of , 2019 (as  amended, restated, extended, supplemented or otherwise modified in writing from time to time,                     Credit Agreement                                                       among  BidFair MergeRight  Inc., a Delaware corporation  (which on the Closing Date shall be  merged  w                                                   Company                             Borrower                               Lenders Deutsche Bank Trust Company Americas, as collateral agent (including any successor thereto,  the Collateral Agent .         Borrower shall make principal payments on this Note as set forth in Section 2.11 of the  Credit Agreement.           All payments of principal and interest shall be made to the Administrative Agent for the  account of the Lender in Dollars in immediately available funds to the payment account of the  Administrative Agent. If any amount is not paid in full when due hereunder, such unpaid amount  shall bear interest, to be paid upon demand, from the due date thereof until the date of actual  payment (and before as well as after judgment) computed at the per annum rate set forth in the  Credit Agreement.                                 Note           o the benefits of the Credit Agreement and  may be prepaid in whole or in part subject to the terms and conditions provided therein. This  Note is also entitled to the benefits of the Facility Guaranty and is secured by the Collateral.   Upon the occurrence and continuation of an Event of Default specified in the Credit Agreement,  all  amounts  then  remaining  unpaid  on  this  Note  shall  become,  or  may  be  declared  to  be,  immediately due and payable all as provided in the Credit Agreement. The Loan made by the  Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in                                              77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                                           THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE                                                                                 LOANS AND PAYMENTS WITH RESPECT THERETO  WITH THE LAWS OF THE STATE OF NEW YORK.                                                                                                                                                                                                    Amount of      Outstanding         NOTWITHSTANDING  ANYTHING  TO  THE  CONTRARY  CONTAINED  HEREIN                                                                                                             End of         Principal or   Principal  OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT                                                                  Tranche         Type of Loan   Amount of      Interest       Interest Paid  Balance This    Notation  PURSUANT TO AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 9.04 OF                                                  Date           of Loan         Made           Loan Made      Period         This Date      Date            Made By  THE CREDIT AGREEMENT.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   SOTHEBY                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       By:                                                                                                                                                                                                                                    Name:                                                                                                                                                                                                                               Title:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       77785246_6                                                                                                                      77785246_6  EU-DOCS\26045402.3                                                                                                              EU-DOCS\26045402.3 





 






                                                                                                                                                                                     Exhibit H-1                          [NAME OF LENDER]                                                              to the Credit Agreement                                                                                                             By:                                                               FORM OF NON-BANK TAX CERTIFICATE                                                          Name:                          U.S. TAX COMPLIANCE CERTIFICATE                                                                                                                 Title:      (For Non-U S. Lenders That Are Not Partnerships or Pass-Through Entities For U.S. Federal                                 Income Tax Purposes)                                                                                                             Date: ________ __, 20[  ]                                                          Reference is hereby made to the Credit Agreement dated as of October 2, 2019  (as amended, modified, supplemented or restated from time to time, the Credit Agreement ),  among BidFair MergeRight Inc., a Delaware corporation (which on the Closing Date shall be  merged w                                              Company                            Borrower                                 ies  thereto,  the  Administrative  Agent  for  the  Lenders  and  Deutsche  Bank  Trust  Company  Americas,  as  Collateral Agent.                Pursuant  to  the  provisions  of  Section  2.20(e)  of  the  Credit  Agreement,  the  undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as  well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate,  (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten  percent shareholder (as determined for U.S. federal income tax purposes) of the Borrower within  the  meaning  of  Section  871(h)(3)(B)  of  the  Code  and  (iv)  it  is  not  a  controlled  foreign  corporation  (as  determined  for  U.S.  federal  income  tax  purposes)  related  to  the  Borrower  as  described in Section 881(c)(3)(C) of the Code.                The undersigned has furnished the Administrative Agent and the Borrower with a  certificate of its non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E.  By executing this  certificate, the undersigned agrees that (1) if the information provided on this certificate changes,  the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2)  the undersigned shall have at all times furnished the Borrower and the Administrative Agent with  a properly completed and currently effective certificate in either the calendar year in which each  payment is to be made to the undersigned, or in either of the two calendar years preceding such  payments.                    Unless otherwise defined herein, terms defined in the Credit Agreement and used  herein shall have the meanings given to them in the Credit Agreement.                                                                                                                                                                                                            NY\6783899.4                                                                                                77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                                                                                     Exhibit H-2                                                                                                Exhibit H-3                                                              to the Credit Agreement                                                                                    to the Credit Agreement                        FORM OF NON-BANK TAX CERTIFICATE                                                                          FORM OF NON-BANK TAX CERTIFICATE                        U.S. TAX COMPLIANCE CERTIFICATE                                                                            U.S. TAX COMPLIANCE CERTIFICATE   (For Non-U S. Participants That Are Not Partnerships or Pass-Through Entities For U.S. Federal              (For Non-U.S. Participants That Are Partnerships or Pass-Through Entities For U.S. Federal                                 Income Tax Purposes)                                                                                       Income Tax Purposes)                                                                                                                                                                    Reference is hereby made to the Credit Agreement dated as of October 2, 2019  (as amended, modified, supplemented or restated from time to time, the Credit Agreement ),                             Reference is hereby made to the Credit Agreement dated as of October 2, 2019  among BidFair  MergeRight  Inc., a Delaware  corporation  (which  on  the  Closing Date shall  be          (as amended, modified, supplemented or restated from time to time, the Credit Agreement ),  merged w                                              Company                                              among BidFair  MergeRight  Inc., a Delaware  corporation  (which  on  the  Closing Date shall  be  surviving such merger a    Borrower                                                                        merged w                                              Company     ith the Company  Administrative  Agent  for  the  Lenders  and  Deutsche  Bank  Trust  Company  Americas,  as                                         Borrower Collateral Agent.                                                                                          Administrative  Agent  for  the  Lenders  and  Deutsche  Bank  Trust  Company  Americas,  as                                                                                                             Collateral Agent.               Pursuant to the provisions of Section 2.20(e) and 9.04(f) of the Credit Agreement,  the  undersigned  hereby  certifies  that  (i)  it  is  the  sole  record  and  beneficial  owner  of  the             Pursuant to the provisions of Section 2.20(e) and 9.04(f) of the Credit Agreement,  participation in respect of which it is providing this certificate, (ii) it is not a bank within the       the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect  meaning  of  Section  881(c)(3)(A)  of  the  Code,  (iii)  it  is  not  a  ten  percent  shareholder  (as  of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole  determined for U.S. federal income tax purposes) of the Borrower within the meaning of Section             beneficial  owners  of  such  participation,  (iii)  with  respect  such  participation,  neither  the  871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation (as determined for            undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant  U.S. federal income tax purposes) related to the Borrower as described in Section 881(c)(3)(C)             to  a  loan  agreement  entered  into  in  the  ordinary  course  of  its  trade  or  business  within  the  of the Code.                                                                                               meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members                                                                                                             is  a  ten  percent  shareholder  (as  determined  for  U.S.  federal  income  tax  purposes)  of  the               The  undersigned  has  furnished  its  participating  Lender  with  a  certificate  of  its   Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or  non-U.S. Person status on IRS Form W-8BEN or W-8BEN-E.  By executing this certificate, the                 indirect  partners/members  is  a  controlled  foreign  corporation  (as  determined  for  U.S.  federal  undersigned  agrees  that  (1)  if  the  information  provided  on  this  certificate  changes,  the       income tax purposes) related to the Borrower as described in Section 881(c)(3)(C) of the Code.   undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have  at all times furnished such Lender with a properly completed and currently effective certificate in                    The undersigned has furnished its participating Lender with IRS Form W-8IMY  either the calendar year in which each payment is to be made to the undersigned, or in either of           accompanied by one of the following forms from each of its partners/members that is claiming  the two calendar years preceding such payments.                                                            the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form                                                                                                             W-8IMY  accompanied  by  an  IRS  Form  W-8BEN  or  W-8BEN-E  from  each  of  such               Unless otherwise defined herein, terms defined in the Credit Agreement and used  herein shall have the meanings given to them in the Credit Agreement.                                      executing  this  certificate,  the  undersigned  agrees  that  (1)  if  the  information  provided  on  this                                                                                                             certificate  changes,  the  undersigned  shall  promptly  so  inform  such  Lender  and  (2)  the  [NAME OF PARTICIPANT]                                                                                      undersigned  shall  have  at  all  times  furnished  such  Lender  with  a  properly  completed  and                                                                                                             currently effective certificate in either the calendar year in which each payment is to be made to   By:                                                                                                       the undersigned, or in either of the two calendar years preceding such payments.      Name:        Title:                                                                                                             Unless otherwise defined herein, terms defined in the Credit Agreement and used                                                                                                             herein shall have the meanings given to them in the Credit Agreement.  Date: ________ __, 20[  ]                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             NY\6783899.4  77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                               [NAME OF PARTICIPANT]                                                                                                                                                            Exhibit H-4                                                                                                                                                                         to the Credit Agreement    By:                                             Name:                                                                                                                      FORM OF NON-BANK TAX CERTIFICATE      Title:                                                                                                                       U.S. TAX COMPLIANCE CERTIFICATE                                                                                                             (For Non-U S. Lenders That Are Partnerships or Pass-Through Entities For U.S. Federal Income  Date: ________ __, 20[  ]                                                                                                                    Tax Purposes)                                                                                                                                                                                                                                                                                 Reference is hereby made to the Credit Agreement dated as of October 2, 2019                                                                                                             (as amended, modified, supplemented or restated from time to time, the Credit Agreement ),                                                                                                             among BidFair  MergeRight  Inc., a Delaware  corporation  (which  on  the  Closing Date shall  be                                                                                                             merged w                                              Company                                                                                                                                      Borrower                                                                                                            Administrative  Agent  for  the  Lenders  and  Deutsche  Bank  Trust  Company  Americas,  as                                                                                                             Collateral Agent.                                                                                                                          Pursuant  to  the  provisions  of  Section  2.20(e)  of  the  Credit  Agreement,  the                                                                                                             undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any                                                                                                             Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct                                                                                                             or  indirect  partners/members  are  the  sole  beneficial  owners  of  such  Loan(s)  (as  well  as  any                                                                                                             Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this                                                                                                             Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or                                                                                                             indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in                                                                                                             the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the                                                                                                             Code,  (iv)  none  of  its  direct  or  indirect  partners/members  is  a  ten  percent  shareholder  (as                                                                                                             determined for U.S. federal income tax purposes) of the Borrower within the meaning of Section                                                                                                             871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled                                                                                                             foreign corporation (as determined for U.S. federal income tax purposes) related to the Borrower                                                                                                             as described in Section 881(c)(3)(C) of the Code.                                                                                                                          The undersigned has furnished the Administrative Agent and the Borrower with                                                                                                             IRS  Form  W-8IMY  accompanied  by  one  of  the  following  forms  from  each  of  its                                                                                                             partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or                                                                                                             W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E                                                                                                              exemption.   By  executing  this  certificate,  the  undersigned  agrees  that  (1)  if  the  information                                                                                                             provided on this certificate changes, the undersigned shall promptly so inform the Borrower and                                                                                                             the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower                                                                                                             and  the  Administrative  Agent  with  a  properly  completed  and  currently  effective  certificate  in                                                                                                             either the calendar year in which each payment is to be made to the undersigned, or in either of                                                                                                             the two calendar years preceding such payments.                                                                                                                          Unless otherwise defined herein, terms defined in the Credit Agreement and used                                                                                                             herein shall have the meanings given to them in the Credit Agreement.                                                                                                                                                                                                                             77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                                                                                                                                                                                                   Exhibit I                                                                                                                                                                         to the Credit Agreement  [NAME OF LENDER]                                                                                                                                    FORM OF SOLVENCY CERTIFICATE   By:                                                                                                                                                     Name:                                                                                                  THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:      Title:                                                                                                   Date: ________ __, 20[  ]                                                                                  1.    I am the [chief financial officer] of BidFair MergeRight Inc., a Delaware corporation (the                                                                                                                              ).                                                                                                                                                                                                                                2.                                                                                                                   restated,  supplemented  or  otherwise  modified,  the          ;  the  terms                                                                                                                   defined therein and not otherwise defined herein being used herein as therein defined), by                                                                                                                   and among the Company as Borrower, the Lenders party thereto from time to time, BNP                                                                                                                   Paribas, as administrative agent (together with its permitted successors in such capacity,                                                                                                                   the  Administrative  Agent )  and  Deutsche  Bank  Trust  Company  Americas,  as                                                                                                                   Collateral Agent.                                                                                                                                                                                                                                 3.    I have reviewed Section 3.20 of the Credit Agreement and the definitions and provisions                                                                                                                   contained  in  the  Credit Agreement relating  thereto,  and,  in  my  opinion,  have  made,  or                                                                                                                   have caused to be made under my supervision, such examination or investigation as is                                                                                                                   necessary  to  enable  me  to  express  an  informed  opinion  as  to  the  matters  referred  to                                                                                                                   herein.                                                                                                                                                                                                                                4.    Based upon my review and examination described in paragraph 3 above, I certify, on                                                                                                                   behalf of the Company, that as of the date hereof, after giving effect to the Transactions                                                                                                                   on a pro forma basis, the Borrower is Solvent.                                                                                                                                                                                                                                      The foregoing certifications are made and delivered as of , 2019.                                                                                                                                                                                                                                                                                                                                                                                             BidFair MergeRight Inc.,                                                                                                                                                                                                                                                                                                                                                                                                                                                               By:________________________                                                                                                                                                                                                                                                                                                                     Title: [Chief Financial Officer]                                                                                                                                                                                                                                                                                                                                            77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                                                                                        Exhibit J                                                                                                 Annex A                                                              to the Credit Agreement                                                                                to the Compliance Certificate                                                                                                                                                                                                                    FORM OF COMPLIANCE CERTIFICATE33                                                                             [INSERT FINANCIAL STATEMENTS]                                                                                                                 THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:    1.    I am the [chief financial officer] of                    , (the          ).          2.    Reference is made to the Credit Agreement, dated as of October 2, 2019 (as amended,        modified,  supplemented  or  restated  from  time  to  time,  the     ;  the        terms  defined  therein  and  not  otherwise  defined  herein  being  used  herein  as  therein        defined), by and among the Company as Borrower, the Lenders party thereto from time        to time, BNP Paribas, as administrative agent (together with its permitted successors in        such  capacity,  the Administrative  Agent )  and  Deutsche  Bank  Trust  Company        Americas, as Collateral Agent.          3.    I have made, or have caused to be made under my supervision, a review in reasonable        detail  of  the  transactions  and  condition  of  the  Company  and  its  Subsidiaries  during  the        accounting period covered by the financial statements attached hereto as Annex A.          4.    The  examination  described  in  paragraph  3  above  did  not  disclose,  and  I  have  no        knowledge  of,  the  existence  of  any  condition  or  event  which  constitutes  an  Event  of        Default  or  Default  during  or  at  the  end  of  any  of  the  accounting  periods  covered  by  the        attached financial statements or as of the date of this Certificate, except as set forth in a separate        attachment, if any, to this Certificate, describing in detail, the nature of the condition or event,        the period during which it has existed and the action which the Company has taken, is taking,        or proposes to take with respect to each such condition or event.                The foregoing certifications, together with the computations set forth in Annex A hereto        and the financial statements delivered with this Certificate in support hereof, are made                                 to Section 4.10(e) of Annex 1 of the Credit Agreement.                                                                                                                                                                                                                                                  By:________________________                                                               Title: Chief Financial Officer                                                     33 NTD: Pursuant to Section 4.05(e) of the Security Agreement, with respect to Copyrights, Trademarks or Patents  filed, obtained or acquired after the Closing Date, on the date on which quarterly or annual financial statements are  required to be delivered pursuant to Section 4.10 in Annex I of the Credit Agreement, the applicable Grantors (as  defined in the Security Agreement) are required to deliver to the Collateral Agent in form and substance reasonably  acceptable to the Collateral Agent and suitable for filing in the Applicable IP Office the respective Confirmatory  Grant for all material Copyrights, Trademarks, and Patents owned by such Grantor.                                                                                                                                                                                                                            77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                                                                                        Annex B                           an Officer of the Company) or returned surplus assets of any                                                          to the Compliance Certificate                      Pension Plan;                                                                                                             (c) any extraordinary, exceptional, unusual or nonrecurring gain, $                        FOR THE FISCAL QUARTER ENDING                                                         loss, charge or expense or any charges, expenses or reserves in                                                                                                             respect of any restructuring, redundancy or severance or any  Consolidated Net Senior Secured Leverage Ratio means, as of any date of determination, the                 expenses, charges, reserves, gains or other costs related to the  ratio of (A) Consolidated Net Senior Secured Leverage to (B) Pro Forma EBITDA34.                           Transactions; and, to the extent not otherwise included in this clause                                                                                                             (c): recruiting, retention and relocation costs; signing bonuses and  A. Consolidated Net Senior Secured Leverage                                                                related expenses and one-time compensation charges; curtailments  1. The aggregate outstanding Senior Secured Indebtedness of the $                                          or modifications to pension and post-retirement employee benefit  Company and the Restricted Subsidiaries                                                                    plans transaction and refinancing bonuses and special bonuses paid  excluding                                                                                                  in connection with dividends and distributions to equity holders;  2. Hedging Obligations                                    $                                                start-up, transition, strategic initiative (including any multi-year                                                                                                             strategic initiative) and integration costs, charges or expenses; costs,  3. any revolving Indebtedness Incurred pursuant to Section 4.04 of                                         charges and expenses related to the start-up, pre-opening, opening,  Annex I to the Credit Agreement in an amount not to exceed the                                             closure, and/or consolidation of operations, offices and facilities;  greater of (x) $75 million and (y) 33.3% Pro Forma EBITDA                                                  business optimization costs, charges or expenses; costs, charges and  less                                                                                                       expenses incurred in connection with new product design,  4. The aggregate amount of cash and Cash Equivalents of the $                                              development and introductions; costs and expenses incurred in  Company and the Restricted Subsidiaries on a consolidated basis                                            connection with intellectual property development and new systems  Total (A.1  A.2  A.3  A.4)                                $                                                design; costs and expenses incurred in connection with                                                                                                             implementation, replacement, development or upgrade of  B. Pro Forma EBITDA35                                                                                      operational, reporting and information technology systems and  1. The net income (loss) of the Company and the Restricted $                                               technology initiatives; any costs, expenses or charges relating to any  Subsidiaries determined on a consolidated basis on the basis of                                            governmental investigation or any litigation or other dispute  GAAP; provided, however, that there will not be included:                                                  (including with any customer); costs and expenses in respect of                                                                                                             warranty payments; or any fees, charges, losses, costs and expenses  (a)   subject to the limitations contained in clause (c) below, any $                                      incurred during such period, or any amortization thereof for such  net income (loss) of any Person if such Person is not a Restricted                                         period, in connection with or related to any acquisition, Restricted                                                                                                             Payment, Investment, recapitalization, asset sale, issuance,  any such Person for such period will be included in such                                                   incurrence, registration or repayment or modification of  Consolidated Net Income up to the aggregate amount of cash or                                              Indebtedness, issuance or offering of Capital Stock, refinancing  Cash Equivalents actually distributed by such Person during such                                           transaction or amendment, modification or waiver in respect of the  period to the Company or a Restricted Subsidiary as a dividend or                                          documentation relating to any such transaction and any charges or  other distribution or return on investment                                                                 non-recurring merger costs incurred during such period as a result  (b)   any net gain (or loss) realized upon the sale, abandonment or $                                      of any such transaction  other disposition of any asset or disposed operations of the                                               (d)   the cumulative effect of a change in accounting principles; $   Company or any Restricted Subsidiary (including pursuant to any                                            (e)   any non-cash compensation charge or expense arising from $   sale/ leaseback transaction) which is not sold or otherwise disposed                                       any grant of stock, stock options or other equity based awards and  of in the ordinary course of business (as determined in good faith by                                      any non-cash deemed finance charges in respect of any pension                                                                                                             liabilities or other provisions;                                                                                                             (f)   all deferred financing costs written off and premiums paid or $   34 For the most recently ended four full fiscal quarters for which internal financial statements of the Borrower are other expenses incurred directly in connection with any early  available.                                                                                                 extinguishment of Indebtedness and any net gain (loss) from any  35 NTD: For purposes of calculating the Financial Covenant and the definition of Applicable Revolving                                                                      ro Forma                               write-off or forgiveness of Indebtedness;                                                                                                                                                                                                                                                                                                          77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                               (g)   any unrealized gains or losses in respect of Hedging $                                               Offering (including of a Parent), Investment, acquisition (including  Obligations or other derivative instruments or any ineffectiveness                                         amounts paid in connection with the acquisition or retention of one  recognized in earnings related to qualifying hedge transactions or                                         or more individuals comprising part of a management team retained  the fair value or changes therein recognized in earnings for                                               to manage the acquired business; provided that such payments are  derivatives that do not qualify as hedge transactions, in each case, in                                    made in connection with such acquisition and are consistent with  respect of Hedging Obligations or other derivative instruments;                                            the customary practice in the industry at the time of such  (h)   any unrealized foreign currency translation gains or losses in $                                     acquisition), disposition, recapitalization or the Incurrence of any  respect of Indebtedness of any Person denominated in a currency                                            Indebtedness permitted by the Credit Agreement (whether or not  other than the functional currency of such Person and any                                                  successful) (including any such fees, expenses or charges related to  unrealized foreign exchange gains or losses relating to translation of                                     the Transactions), in each case, as determined in good faith by the  assets and liabilities denominated in foreign currencies;                                                  Company;  (i)   any unrealized foreign currency translation or transaction $                                         (g)   any minority interest expense (whether paid or not) $     gains or losses in respect of Indebtedness or other obligations of the                                     consisting of income attributable to minority equity interests of third  Company or any Restricted Subsidiary owing to the Company or                                               parties in such period or any prior period or any net earnings,  any Restricted Subsidiary;                                                                                 income or share of profit of any Associates, associated company or  (j)   any one-time non-cash charges or any increases in   $                                                undertaking  amortization or depreciation resulting from purchase accounting, in                                        (h)   the amount of management, monitoring, consultancy and $   each case, in relation to any acquisition of another Person or                                             advisory fees and related expenses paid in such period (or accruals  business or resulting from any reorganization or restructuring                                             relating to such fees and related expenses) to any Permitted Holder  involving the Company or its Subsidiaries;                                                                 (whether directly or indirectly, through any Parent) to the extent  (k)   any goodwill or other intangible asset impairment charge or $                                        permitted by Section 4.09 of Annex I; provided that any payments  write-off; and                                                                                             for such fees and related expense shall not be included in  (l)   the impact of capitalized, accrued or accreting or pay-in-kind $                                     Consolidated EBITDA for any period to the extent they were  interest or principal on Subordinated Shareholder Funding.                                                 accrued for in such period or any prior period and added back to  2. Consolidated Net Income (B.1 +/- B.1(a) +/-B.1(b) +/- B.1(c) $                                          Consolidated EBITDA in such period or any such prior period;   +/- B.1(d)+/- B.1(e)+/- B.1(f) +/- B.1(g)+/- B.1(h)+/- B.1(i)+/-                                           (i)   other non-cash charges, write-downs or items reducing $   B.1(j)+/- B.1(k)+/- B.1(l)), less the aggregate amount of lease                                            Consolidated Net Income (excluding any such non-cash charge,  payments during such period under the lease-back arrangements                                              write-down or item to the extent it represents an accrual of or  entered into in connection with the Permitted Sale and Leaseback                                           reserve for cash charges in any future period) or other non-cash  Transactions (for the avoidance of doubt, for the purposes of this                                         items classified by the Company as special items less other non- definition of Consolidated EBITDA, the treatment of such payments                                          cash items of income increasing Consolidated Net Income (other  under GAAP shall be disregarded)                                                                           than any non-cash items increasing such Consolidated Net Income                                                                                                             pursuant to items B.1(a) through (l) above and excluding any such  plus:36                                                                                                    non-cash item of income to the extent it represents a receipt of cash                                                                                                             in any future period);                                                                                                             (j) (x) any loss from discontinued operations (but if such operations   (a)   Consolidated Interest Expense and Receivables Fees  $                                                are classified as discontinued due to the fact that they are subject to  (b)   Consolidated Income Taxes                           $                                                an agreement to dispose of such operations, only when and to the  (c)   consolidated depreciation expense                   $                                                extent such operations are actually disposed of), reduced by (y) any                                                                                                             income from discontinued operations (but if such operations are  (d)   consolidated amortization and impairment expense    $                                                classified as discontinued due to the fact that they are subject to an  (e)        Parent Expenses of a Parent                    $                                                agreement to dispose of such operations, only when and to the  (f)   any expenses, charges or other costs related to any Equity $                                         extent such operations are actually disposed of); and                                                                                                             (k) to the extent not already otherwise included herein, adjustments                                                                                                              and add-backs of the nature used in connection with the calculation  36 Only to the extent deducted in calculating such Consolidated Net Income.                                                                                                                                                                                                                             77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3 





 






                                                                                                                                                                                                                          be calculated after giving pro forma effect thereto as if such Sale or  Memorandum                                                                                                 Purchase occurred on the first day of such period.  Consolidated EBITDA (B.2 +B.2(a) + B.2(b) + B.2(c) +      $                                                Pro forma EBITDA37 (B.3 +/-B.3(a) + B.3(b) +/-B.3(c)):    $     B.2(d) + B.2(e) + B.2(f) + B.2(g) + B.2(h)) + B.2(i) + B.2(j) +                                              B.2(k)                                                                                                   Consolidated Net Senior Secured Leverage Ratio = (A) / (B)         __:1.00                                                                                                                                                                                adjusted as follows:                                                                                                                                                                                                                                                                                      (a) if since the beginning of such period the Company or any $   Restricted Subsidiary has disposed of any company, any business,  or any group of assets constituting an operating unit of a business or  otherwise ceases to be a Restricted Subsidiary (and is not a  Restricted Subsidiary at the end of such period) (any such               Sale calculate Pro Forma EBITDA is such a Sale, Pro forma EBITDA  for such period will be reduced by an amount equal to the  Consolidated EBITDA (if positive) attributable to the assets which  are the subject of such Sale for such period or increased by an  amount equal to the Consolidated EBITDA (if negative) attributable  thereto for such period; provided that if any such sale constitutes                                     ith GAAP, Consolidated  Net Income shall be reduced by an amount equal to the  Consolidated Net Income (if positive) attributable to such  operations for such period or increased by an amount equal to the  Consolidated Net Income (if negative) attributable thereto for such  period;  (b) since the beginning of such period, a Parent, the Company or $   any Restricted Subsidiary (by merger or otherwise) has made an  Investment in any Person that thereby becomes a Restricted  Subsidiary, or otherwise has acquired any company, any business,  or any group of assets constituting an operating unit of a business or  a Person otherwise becomes a Restricted Subsidiary (and remains a  Restricted Subsidiary at the end of such period) (any such  Investment, acquisition or designati such Purchase occurring in connection with a transaction causing a                                                                                           calculation to be made hereunder, Pro forma EBITDA for such                                                37 For the purposes of this definition and the definitions of Consolidated EBITDA, Consolidated Income  Taxes,  Consolidated  period will be calculated after giving pro forma effect thereto as if                                      Interest Expense, Consolidated Net Income, Consolidated Net Leverage Ratio and Consolidated Net Senior Secured Leverage  such Purchase occurred on the first day of such period; and                                                Ratio (a) whenever pro forma effect is to be given to any transaction (including, without limitation, transactions listed in clauses                                                                                                             (a)-(c) hereof) or calculation hereunder or such other definitions, the pro forma calculations will be as determined in good faith  (c) since the beginning of such period, any Person (that became a $                                        by a responsible financial or accounting officer of the Borrower or an Officer of the Issuer (including in respect of anticipated  Restricted Subsidiary or was merged or otherwise combined with or                                          expense  and  cost  reductions  and  synergies  (other  than  revenue  synergies))  (calculated  on  a  pro  forma  basis  as  though  such  into the Company or any Restricted Subsidiary since the beginning                                          expense and cost reductions and synergies had been realized on the first day of the period for which Pro forma EBITDA is being                                                                                                             determined and as though such cost savings, operating expense reductions and synergies were realized during the entirety of such  of such period) will have made any Sale or any Purchase that would                                         period), (b) in determining the amount of Indebtedness outstanding on any date of determination, pro forma effect shall be given  have required an adjustment pursuant to clause (a) or (b) above if                                         to  any  Incurrence,  repayment,  repurchase,  defeasance  or other  acquisition,  retirement  or  discharge  of  Indebtedness  as if  such  made by the Company or a Restricted Subsidiary since the                                                   transaction had occurred on the first day of the relevant period and (c) if any Indebtedness bears a floating rate of interest and is                                                                                                             being  given  pro  forma  effect,  the  interest  on  such  Indebtedness  shall  be  calculated  as  if  the  rate  in  effect  on  the  date  of  beginning of such period, Pro forma EBITDA for such period will                                            determination had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such                                                                                                             Indebtedness if such Hedging Obligation has a remaining term in excess of 12 months).                                                                                                                                                                                                                            77785246_6                                                                                                 77785246_6  EU-DOCS\26045402.3                                                                                         EU-DOCS\26045402.3