bid930201910qex102






                                                                    Exhibit 10.2                                                                                                                                                                                                                                                                                                           BIDFAIR MERGERIGHT INC.,                                                                          as Issuer,                                                                   BIDFAIR HOLDINGS INC.,                               as Parent Guarantor,                                                                                                                                                           and                                                        DEUTSCHE BANK TRUST COMPANY AMERICAS,                                               as Trustee, Paying Agent, Transfer Agent, Registrar and Notes Collateral Agent                                                                         INDENTURE                                                                   Dated as of October 2, 2019                                                                                                      7.375% Senior Secured Notes due 2027                                               EU-DOCS\26039728.6 





 






                              TABLE OF CONTENTS                                                                          Page   ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE ......................................... 1       Section 1.01 Definitions. ....................................................................................................... 1       Section 1.02 Other Definitions. ........................................................................................... 49       Section 1.03 Rules of Construction. .................................................................................... 51  ARTICLE 2 THE NOTES .................................................................................................................... 51       Section 2.01 Form and Dating. ............................................................................................ 51       Section 2.02 Execution and Authentication. ....................................................................... 52       Section 2.03 Transfer Agent, Registrar and Paying Agent. ................................................. 53       Section 2.04 Paying Agent not a party to this Indenture to Hold Money. ........................... 54       Section 2.05 Holder Lists. ................................................................................................... 54       Section 2.06 Transfer and Exchange. .................................................................................. 54       Section 2.07 Replacement Notes. ........................................................................................ 63       Section 2.08 Outstanding Notes. ......................................................................................... 63       Section 2.09 Treasury Notes. ............................................................................................... 64       Section 2.10 Temporary Notes. ........................................................................................... 64       Section 2.11 Cancellation. ................................................................................................... 64       Section 2.12 Defaulted Interest. .......................................................................................... 64       Section 2.13 Further Issues. ................................................................................................. 65       Section 2.14 Common Codes, ISIN and CUSIP Numbers. ................................................. 65       Section 2.15 Currency Indemnity. ....................................................................................... 65       Section 2.16 Deposit of Moneys.......................................................................................... 66       Section 2.17 Agents. ............................................................................................................ 66  ARTICLE 3 REDEMPTION ................................................................................................................ 66       Section 3.01 Notices to Trustee. .......................................................................................... 66       Section 3.02 Selection of Notes to Be Redeemed or Repurchased. .................................... 66       Section 3.03 Notice of Redemption. .................................................................................... 67       Section 3.04 Effect of Notice of Redemption. ..................................................................... 67       Section 3.05 Deposit of Redemption Price. ......................................................................... 68       Section 3.06 Notes Redeemed in Part. ................................................................................ 68       Section 3.07 Optional Redemption. ..................................................................................... 68       Section 3.08 Tender Offer Redemption. .............................................................................. 69       Section 3.09 Mandatory Redemption. ................................................................................. 69       Section 3.10 Special Mandatory Redemption; Escrow of Proceeds. ................................... 69       Section 3.11 Redemption for Changes in Taxes. ................................................................. 70  ARTICLE 4 COVENANTS ................................................................................................................. 71       Section 4.01 Payment of Notes............................................................................................ 71       Section 4.02 [Reserved]. ...................................................................................................... 71       Section 4.03 Change of Control. ......................................................................................... 71       Section 4.04 Limitation on Indebtedness and Issuance of Disqualified Stock and                   Preferred Stock. .............................................................................................. 73       Section 4.05 Limitation on Restricted Payments. ................................................................ 79       Section 4.06 Limitation on Liens. ....................................................................................... 86       Section 4.07 Limitation on Restrictions on Distributions from Restricted                   Subsidiaries. .................................................................................................... 86       Section 4.08 Limitation on Sales of Assets and Subsidiary Stock. ..................................... 89       Section 4.09 Limitation on Affiliate Transactions. ............................................................. 92       Section 4.10 Reports. ........................................................................................................... 95       Section 4.11 Suspension of Covenants on Achievement of Investment Grade                   Status. ............................................................................................................. 98       Section 4.12 [Reserved]. ...................................................................................................... 99                                       i                                         EU-DOCS\26039728.6 





 






        Section 4.13 [Reserved]. ...................................................................................................... 99       Section 4.14 Compliance Certificate. .................................................................................. 99       Section 4.15 [Reserved]. ...................................................................................................... 99       Section 4.16 Additional Amounts. ...................................................................................... 99       Section 4.17 Additional Intercreditor Agreements. ........................................................... 101       Section 4.18 Impairment of Security Interests. ................................................................. 102       Section 4.19 Payments for Consents. ................................................................................ 103       Section 4.20 Lines of Business. ......................................................................................... 104       Section 4.21 Additional Guarantors. ................................................................................. 104       Section 4.22 Limitation on Parent Guarantor Activities. .................................................. 105       Section 4.23 Restrictions on Licensing Activities. ............................................................ 106       Section 4.24 Reserved Indebtedness. ................................................................................ 106       Section 4.25 Limited Condition Transaction. .................................................................... 106       Section 4.26 Completion of the Acquisition. .................................................................... 107       Section 4.27 Post-Completion Date Undertakings. ........................................................... 107  ARTICLE 5 SUCCESSOR COMPANY ............................................................................................ 108       Section 5.01 Merger and Consolidation of the Issuer. ....................................................... 108       Section 5.02 Merger and Consolidation of the Subsidiary Guarantors. ............................ 109  ARTICLE 6 DEFAULTS AND REMEDIES ..................................................................................... 110       Section 6.01 Events of Default. ......................................................................................... 110       Section 6.02 Acceleration. ................................................................................................. 113       Section 6.03 Other Remedies. ........................................................................................... 113       Section 6.04 Waiver of Past Defaults. ............................................................................... 114       Section 6.05 Control by Majority. ..................................................................................... 114       Section 6.06 Limitation on Suits. ...................................................................................... 114       Section 6.07 Rights of Holders to Receive Payment. ........................................................ 114       Section 6.08 Collection Suit by Trustee. ........................................................................... 115       Section 6.09 Trustee May File Proofs of Claim. ............................................................... 115       Section 6.10 Priorities. ...................................................................................................... 115       Section 6.11 Undertaking for Costs. .................................................................................. 115       Section 6.12 Waiver of Stay or Extension Laws. .............................................................. 116       Section 6.13 Restoration of Rights and Remedies. ............................................................ 116       Section 6.14 Rights and Remedies Cumulative. ................................................................ 116       Section 6.15 Delay or Omission Not Waiver. ................................................................... 116  ARTICLE 7 TRUSTEE ...................................................................................................................... 116       Section 7.01 Duties of Trustee. ......................................................................................... 116       Section 7.02 Rights of Trustee. ......................................................................................... 118       Section 7.03 Individual Rights of Trustee. ........................................................................ 120       Section 7.04 Trustee’s Disclaimer. .................................................................................... 120       Section 7.05 Notice of Defaults. ........................................................................................ 120       Section 7.06 [Reserved]. .................................................................................................... 120       Section 7.07 Compensation and Indemnity. ...................................................................... 120       Section 7.08 Replacement of Trustee. ............................................................................... 121       Section 7.09 Successor Trustee by Merger........................................................................ 122       Section 7.10 [Reserved]. .................................................................................................... 122       Section 7.11 Certain Provisions......................................................................................... 122       Section 7.12 Resignation of Agents. ................................................................................. 123  ARTICLE 8 DISCHARGE OF INDENTURE; DEFEASANCE ....................................................... 123       Section 8.01 Discharge of Liability on Notes; Defeasance. .............................................. 123       Section 8.02 Conditions to Defeasance. ............................................................................ 124       Section 8.03 Application of Trust Money. ........................................................................ 125       Section 8.04 Repayment to Issuer. .................................................................................... 125       Section 8.05 Indemnity for Government Obligations........................................................ 125                                       ii                                         EU-DOCS\26039728.6 





 






        Section 8.06 Reinstatement. .............................................................................................. 125  ARTICLE 9 AMENDMENTS AND WAIVERS ............................................................................... 126       Section 9.01 Without Consent of Holders. ........................................................................ 126       Section 9.02 With Consent of Holders. ............................................................................. 126       Section 9.03 Revocation and Effect of Consents and Waivers. ........................................ 128       Section 9.04 Notation on or Exchange of Notes................................................................ 128       Section 9.05 Trustee and Notes Collateral Agent to Sign Amendments. .......................... 128  ARTICLE 10 NOTE GUARANTEES ............................................................................................... 129       Section 10.01 Note Guarantees. .......................................................................................... 129       Section 10.02 Successors and Assigns. ............................................................................... 130       Section 10.03 No Waiver. ................................................................................................... 131       Section 10.04 Modification. ................................................................................................ 131       Section 10.05 Execution of Supplemental Indenture for Guarantors. ................................. 131       Section 10.06 Release of the Note Guarantees. ................................................................... 131       Section 10.07 Limitations on Obligations of Guarantors. ................................................... 132       Section 10.08 Non-Impairment. .......................................................................................... 132  ARTICLE 11 NOTES COLLATERAL, NOTES SECURITY DOCUMENTS AND THE NOTES       COLLATERAL AGENT ....................................................................................................... 133       Section 11.01 Notes Collateral and Notes Security Documents. ......................................... 133       Section 11.02 Release of Notes Collateral .......................................................................... 134       Section 11.03 Authorization of Actions to be Taken by the Trustee or the Notes                   Collateral Agent Under the Notes Security Documents. .............................. 135       Section 11.04 Collateral Accounts. ..................................................................................... 136       Section 11.05 Appointment and Authorization of Deutsche Bank Trust Company                   Americas as Notes Collateral Agent. ............................................................ 136       Section 11.06 Conflicts. ...................................................................................................... 137  ARTICLE 12 MISCELLANEOUS .................................................................................................... 138       Section 12.01 Notices .......................................................................................................... 138       Section 12.02 Certificate and Opinion as to Conditions Precedent. .................................... 139       Section 12.03 Statements Required in Certificate or Opinion. ............................................ 139       Section 12.04 When Notes Disregarded. ............................................................................. 139       Section 12.05 Rules by Trustee, Paying Agent and Registrar. ............................................ 139       Section 12.06 Legal Holidays. ............................................................................................. 140       Section 12.07 Governing Law and Waiver of Trial by Jury. ............................................... 140       Section 12.08 Consent to Jurisdiction and Service. ............................................................. 140       Section 12.09 No Recourse Against Others. ....................................................................... 140       Section 12.10 Successors. .................................................................................................... 140       Section 12.11 Multiple Originals......................................................................................... 140       Section 12.12 Table of Contents; Headings. ....................................................................... 140       Section 12.13 Prescription. .................................................................................................. 140       Section 12.14 Patriot Act. .................................................................................................... 140       Section 12.15 Severability. .................................................................................................. 141                                              iii                                         EU-DOCS\26039728.6 





 






                                      EXHIBITS   Exhibit A   Form of Note   Exhibit B   Form of Certificate of Transfer   Exhibit C   Form of Certificate of Exchange   Exhibit D   Form of Supplemental Indenture   Exhibit E   Agreed Security Principles                                              i                                         EU-DOCS\26039728.6 





 






        INDENTURE  dated  as  of October  2,  2019,  among BidFair  MergeRight  Inc.,  a  Delaware  corporation (the “Issuer”), BidFair Holdings Inc. (the “Parent Guarantor”) and Deutsche Bank Trust  Company Americas, as trustee (the “Trustee”), paying agent, transfer agent, registrar and collateral  agent.        Each party agrees as follows for the benefit of the other parties and for the equal and ratable  benefit of the Holders of (i) $600,000,000 aggregate principal amount of the Issuer’s 7.375% Senior  Secured Notes  due 2027 (the “Initial  Notes”)  and  (ii) an  unlimited  principal  amount  of  additional  securities having identical terms and conditions as the Initial Notes except as otherwise set forth herein  (the “Additional Notes”) that may be issued on any later issue date subject to the conditions and in  compliance with the covenants set forth herein. Unless the context otherwise requires, in this Indenture  references to the “Notes” include the Initial Notes and the Additional Notes that are actually issued.                                     ARTICLE 1                       DEFINITIONS AND INCORPORATION                                BY REFERENCE   Section 1.01 Definitions.        “Acquired Indebtedness” means Indebtedness (1) of a Person or any of its Subsidiaries existing  at the time such Person becomes a Restricted Subsidiary, (2) assumed in connection with the acquisition  of assets from such Person, in each case whether or not Incurred by such Person in connection with  such Person becoming a Restricted Subsidiary or such acquisition, or (3) of a Person at the time such  Person merges with or into or consolidates or otherwise combines with the Issuer or any Restricted  Subsidiary. Subject to Section 4.24 and Section 4.25, 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  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 relevant merger,  consolidation or other combination.        “Acquisition” means the acquisition of all of the outstanding equity interests in the Target by  the Parent Guarantor pursuant to the Acquisition Agreement.        “Acquisition Agreement” means the agreement and plan of merger, dated as of June 16, 2019,  between the Initial Issuer, Parent Guarantor and the Target and any schedules and exhibits thereto.        “Additional Assets” means:        (1)   any property or assets (other than Indebtedness and Capital Stock) not classified as             current assets under GAAP used or to be used by the Issuer or a Restricted Subsidiary             or otherwise useful in a Similar Business (it being understood that capital expenditures             on property or assets already used in a Similar Business or to replace any property or             assets that are the subject of an Asset Disposition shall be deemed an investment in             Additional Assets);        (2)   the Capital Stock of a Person that is engaged in a Similar Business and becomes a             Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Issuer             or a Restricted Subsidiary; or        (3)   Capital  Stock  constituting  a  minority  interest  in  any  Person  that  at  such  time  is  a             Restricted Subsidiary.        “Additional  First  Lien  Agreement”  means,  with respect  to  the  Initial  Additional  First  Lien  Obligations or any series of Additional Senior Class Debt, the notes, indentures, security documents  and other operative agreements evidencing or governing such indebtedness and liens securing such  indebtedness, including  the  Initial  Additional  First  Lien  Agreement  and  the  Additional  First  Lien                                        1  EU-DOCS\26039728.6 





 






   Security  Documents  and  each  other  agreement  entered  into  for  the  purpose  of  securing  the  Initial  Additional First Lien Obligations or any series of Additional Senior Class Debt; provided that, in each  case, the indebtedness thereunder (other than the Initial Additional First Lien Obligations) has been  designated as Additional First Lien Obligations pursuant to the Intercreditor Agreement.         “Additional First Lien Obligations” means all amounts owing pursuant to the terms of any  Additional First Lien Agreement (including the Initial Additional First Lien Agreement), including,  without limitation, all amounts in respect of any principal, premium, interest (including any interest  accruing subsequent to the commencement of a bankruptcy case at the rate provided for in the respective  Additional First Lien  Agreement, whether or not such interest is  an allowed claim under any such  proceeding or under applicable state, federal or foreign law), penalties, fees, expenses, indemnifications,  reimbursements, damages and other liabilities, and guarantees of the foregoing amounts.         “Additional  First  Lien  Secured  Parties”  means  the  holders  of  any  Additional  First  Lien  Obligations and any Representative with respect thereto.         “Additional  First  Lien  Security  Documents”  means  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 Pledgor to secure the Additional First Lien Obligations.         “Additional Senior Class Debt” means additional indebtedness permitted by the provisions of  the New Credit Facilities and the Additional First Lien Agreements to be incurred and secured on an  equal and ratable basis by the Liens securing the First Lien Obligations.        “Affiliate” of any specified Person means any other Person, directly or indirectly, controlling or  controlled by or under direct or indirect common control with such specified Person. For the purposes  of  this  definition, “control” when  used  with  respect  to  any  Person  means  the  power  to  direct  the  management and policies of such Person, directly or indirectly, whether through the ownership of voting  securities,  by  contract  or  otherwise;  and  the terms “controlling” and “controlled” have  meanings  correlative to the foregoing.        “Agents” means the Paying Agent, Transfer Agent, Registrar and Authenticating Agent.        “Agreed Security Principles” means the information set forth in Exhibit E to this Indenture.         “Applicable Premium” means:        (A)   with respect to any Note, the greater of:              (i)   1% of the principal amount of such Note; and              (ii)  the excess (to the extent positive) of:        (1)   the present value at such redemption date of (i) the redemption price of such Note at             October 15, 2022 (such redemption price (expressed in percentage of principal amount)             being set forth in the table in clause (a) of the paragraph 5 of each Global Note or             Definitive  Registered  Note (excluding  accrued  and  unpaid  interest)),  plus  (ii) all             required  interest  payments  due  on  such  Note  to  and  including October  15,  2022             (excluding accrued but unpaid interest), computed upon the redemption date using a             discount rate equal to the Treasury Rate at such redemption date (or, if greater than such             Treasury Rate, zero) plus 50 basis points; over        (2)   the outstanding principal amount of such Note,                                         2  EU-DOCS\26039728.6 





 






   as calculated by the Issuer or on behalf of the Issuer by such Person as the Issuer shall designate. For  the avoidance of doubt, calculation of the Applicable Premium shall not be an obligation or duty of the  Trustee or Paying Agents.        “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial  interests in any Global Note, the rules and procedures of DTC that apply to such transfer or exchange.        “Asset Disposition” means, with respect to the Issuer and the Restricted Subsidiaries, any direct  or indirect sale, lease (other than an operating lease entered into in the ordinary course of business),  transfer, issuance or other disposition, or a series of related sales, leases (other than operating leases  entered into in the ordinary course of business), transfers, issuances or dispositions that are part of a  common  plan,  of  shares  of  Capital  Stock  of  a  Subsidiary  (other than  directors’ qualifying  shares),  property or other assets (each referred to for the purposes of this definition as a “disposition”) by the  Issuer  or  any  of  the  Restricted  Subsidiaries,  including  any  disposition  by  means  of  a  merger,  consolidation or similar transaction; provided that the sale, lease, transfer, issuance or other disposition  of  all  or  substantially  all  of  the  assets  of the  Issuer  (or  any  successor company)  and its  Restricted  Subsidiaries taken as a whole will be governed by Section 4.03 and/or Article V and not by Section  4.08. Notwithstanding  the  preceding  provisions  of  this  definition,  the  following  items  shall  not  be  deemed to be Asset Dispositions:        (1)   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             Subsidiary  to  the  Issuer  or  by  the  Issuer  or  a  Restricted  Subsidiary  to  a  Restricted             Subsidiary;        (2)   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,  of  cash,  Cash             Equivalents, Temporary Cash Investments or Investment Grade Securities;        (3)   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,  of  inventory,             consumer equipment, trading stock or other assets in the ordinary course of business;        (4)   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, of obsolete, surplus             or worn out equipment or other assets or equipment or other similar assets that are no             longer useful in the conduct of the business (as determined in good faith by the Issuer)             of the Issuer and its Restricted Subsidiaries;        (5)   transactions permitted under Article (a) of this Indenture (other than as permitted under             Section 5.02(a)(3)(C)) or a transaction that constitutes a Change of Control;        (6)   an  issuance  of  Capital  Stock  by  a  Restricted  Subsidiary  to  the  Issuer or  to  another             Restricted Subsidiary or as part of or pursuant to an equity incentive or compensation             plan approved by the Board of Directors of the Issuer;        (7)   any sale, lease, transfer, issuance or other disposition, or any series of related sales,             leases, transfers, issuances or dispositions that are part of a common plan, of Capital             Stock, properties or assets in a single transaction or series of related transactions with a             fair market value (as determined in good faith by the Issuer at the time of such sale,             lease, transfer, issuance or other disposition or, at the option of the Issuer, on the date             of contractually agreeing to such sale, lease, transfer, issuance or other disposition) not             to exceed the greater of $20 million and 10.0% of Pro Forma EBITDA for the most             recently ended four full fiscal quarters for which internal financial statements of the             Issuer are available immediately preceding the date of determination;                                         3  EU-DOCS\26039728.6 





 






        (8)   (i) any  Restricted  Payment  that  is  permitted  to  be  made  under Section  4.05,  any             transaction specifically excluded from the definition of “Restricted Payment” and the             making  of  any  Permitted  Payment  and  Permitted  Investment  and  (ii) solely  for  the             purposes of Section 4.08(b), a disposition, the proceeds of which are used to make such             Restricted Payments permitted to be made under Section 4.05, Permitted Payments or             Permitted Investments;        (9)   the granting of Liens not prohibited by Section 4.06;        (10)  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, of receivables or             related assets in connection with the compromise, settlement or collection thereof in the             ordinary course of business or in bankruptcy or similar proceedings and exclusive of             factoring or similar arrangements;        (11)  subject to Section 4.23, the licensing or sublicensing of intellectual property or other             general intangibles and licenses, sublicenses, leases, subleases of other property, in each             case, in the ordinary course of business;        (12)  foreclosure, condemnation, eminent domain or any similar action with respect to any             property or other assets;        (13)  the  sale  or  discount  (with  or  without  recourse,  and  on  customary  or  commercially             reasonable  terms)  of  tax  receivables  and  factoring,  accounts  receivable  or  notes             receivable arising in the ordinary course of business, or the conversion or exchange of             accounts receivable for notes receivable;        (14)  sales, transfers or dispositions of receivables and related assets in connection with any             Qualified Receivables Financing or any factoring transaction or in the ordinary course             of business, and Investments in a Receivables Entity consisting of cash or Securitization             Assets;        (15)  any sale, lease, transfer, issuance or other disposition, or any series of related sales,             leases, transfers, issuances or dispositions that are part of a common plan, of Capital             Stock, Indebtedness or other securities of an Unrestricted Subsidiary;        (16)  any sale, lease, transfer, issuance or other disposition, or any series of related sales,             leases, transfers, issuances or dispositions that are part of a common plan, of Capital             Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or             to a Person (other than the Issuer or a Restricted Subsidiary) from whom such Restricted             Subsidiary  was acquired,  or  from  whom  such  Restricted  Subsidiary  acquired  its             business and assets (having been newly formed in connection with such acquisition),             made as part of such acquisition and in each case comprising all or a portion of the             consideration in respect of such sale or acquisition;        (17)  any surrender or waiver of contract rights or the settlement, release or surrender of             contract, tort or other claims of any kind;        (18)  any sale, lease, transfer, issuance or other disposition, or any series of related sales,             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             been or are to be outsourced by the Issuer or any Restricted Subsidiary to such Person;             provided, however, that the Board of Directors of the Issuer shall certify that in the             opinion of the Board of Directors, the outsourcing transaction will be economically             beneficial to the Issuer and the Restricted Subsidiaries (considered as a whole);                                         4  EU-DOCS\26039728.6 





 






        (19)  any sale, lease, transfer, issuance or other disposition, or any series of related sales,             leases, transfers, issuances or dispositions that are part of a common plan, with respect             to  property  built,  owned  or  otherwise  acquired  by  the  Issuer  or  any  Restricted             Subsidiary pursuant to customary sale and lease-back transactions, asset securitizations             and other similar financings permitted by this Indenture; provided that with respect to             the  Real  Estate  Portfolio  Transfer  (including  the  Permitted  Sale  and  Leaseback             Transactions) the Issuer shall use its commercially reasonable efforts to consummate             such transactions on or prior to the nine-month anniversary of the Completion Date;        (20)  any sale, lease, transfer, conveyance or other disposition in one or a series of related             transactions of any assets (including Capital Stock) of the Issuer and its Subsidiaries or             of  any  Person  that  becomes  a  Restricted  Subsidiary  (i) acquired  in  a  transaction             permitted  under  this  Indenture,  which  assets  are  not  used  or  useful  in  the  core  or             principal  business  of  the  Issuer  and  its  Restricted  Subsidiaries,  or  (ii) made  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 Issuer to consummate any acquisition permitted under this Indenture;        (21)  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  are  applied  to  the  purchase  price  of  such  replacement  property  (which             replacement property is purchased within 270 days thereof);        (22)  the  lapse,  abandonment  or  other  disposition  of  intellectual  property  rights  in  the             ordinary course of business, which in the reasonable good faith determination of the             Issuer are no longer commercially reasonable to maintain or are not material to the             conduct of the business of the Issuer and its Restricted Subsidiaries taken as a whole;        (23)  to the extent allowable under Section 1031 of the Code, or any comparable or successor             provision,  any  exchange  of  like  property  (excluding any  boot  thereon) for  use in  a             Similar Business;        (24)  sales,  transfers  and other dispositions  of Investments  in joint ventures to the  extent             required by, or made pursuant to, customary buy/sell arrangements between the joint             venture  parties  set  forth  in  joint  venture  arrangements  and  similar  binding             arrangements;        (25)  contractual arrangements under long-term contracts with customers entered into by the             Issuer or a Restricted Subsidiary in the ordinary course of business which are treated as             sales for accounting purposes; provided that there is no transfer of title in connection             with such contractual arrangement; and        (26)  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             described in the Offering Memorandum or any Permitted Reorganization.        In the event that a transaction (or a portion thereof) meets the criteria of more than one of the  categories described in clauses (1) through (26) above or such transaction (or a portion thereof) would  also be a permitted Restricted Payment or Permitted Investment, the Issuer, in its sole discretion, will  be entitled to divide and classify such transaction (or a portion thereof), and from time to time reclassify  such transaction (or a portion thereof), into one or more such categories and/or one or more of the types  of permitted Restricted Payments or Permitted Investments.        “Associate” means  (i) any  Person  engaged  in  a  Similar  Business  of  which  the  Issuer  or  a  Restricted Subsidiary are the legal and beneficial owners of between 20% and 50% of all outstanding                                        5  EU-DOCS\26039728.6 





 






   Voting Stock and (ii) any joint venture engaged in a Similar Business entered into by the Issuer or any  Restricted Subsidiary.        “Bankruptcy Law” means (a) Title 11 of the United States Code, as amended, (b) the U.K.  Insolvency Law 1986, (c) any other law of the United States, the United Kingdom or Hong Kong (or,  in each case, any political subdivision thereof) 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, succession to or change in any such law, and (d) in relation to  Luxembourg law, relating to (i) any of insolvency proceedings (faillite) pursuant to Article 437 of the  Luxembourg Commercial Code (Code de commerce); suspension of payments (sursis de paiement)  pursuant  to  Article  593  of  the  Luxembourg  Commercial  Code;  controlled  management  (gestion  contrôlée) pursuant to the Grand Ducal Regulation on controlled management (Arrêté grand-ducal du  24 mai 1935 complétant la législation relative aux sursis de paiement, au concordat préventif de la  faillite et à la faillite par l'institution du régime de la gestion contrôlée); voluntary arrangement with  creditors (concordat préventif de faillite) pursuant to the Luxembourg law on arrangements to prevent  insolvency  (loi  du  14  avril  1886 concernant le  concordat préventif  de  faillite); judicial liquidation  (liquidation judiciaire) pursuant to Article 1200-1 of the Luxembourg companies law dated 10 August  1915 (as amended) and any court order appointing an interim administrator (administrateur provisoire).        “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under  the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that  term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial  ownership of all securities that such “person” has the right to acquire by conversion or exercise of other  securities, whether such right is currently exercisable or is exercisable only after the passage of time.  The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.        “Board  of  Directors” means  (1) with  respect  to  any  corporation,  the  board  of  directors  or  managers, as applicable, of the corporation, or any duly authorized committee thereof; (2) 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 any other Person, the  board or any duly authorized committee of such Person serving a similar function. Unless otherwise  specified  in this  Indenture,  whenever  any  provision  of this  Indenture requires  any  action  or  determination to be made by, or any approval of, a Board of Directors, such action, determination or  approval shall be deemed to have been 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  formal  board  approval); provided that  any  action  required  to  be  taken  under this  Indenture by the Board of Directors of the Issuer can, in the alternative, at the option of the Issuer, be  taken by the Parent Guarantor and its successors or any Subsidiary thereof that is a Parent of the Issuer.        “Book-Entry  Interest” means  a  beneficial  interest  in  a  Global  Note  held  by or  through  a  Participant.        “Business Day” means each day that is not a Saturday, Sunday or other day on which banking  institutions in London, United Kingdom or New York, New York, United  States are  authorized  or  required by law to close.        “Capital Stock” of any Person means any and all shares of, interests, rights to purchase, warrants  or  options  for,  participation  or  other  equivalents  of,  or  partnership  or  other  interests  in  (however  designated), equity of such Person, including any Preferred Stock, but excluding any debt securities  convertible into such equity.        “Capitalized  Lease  Obligations” means  an  obligation  that  is  required  to  be  classified  and  accounted for as a capitalized lease for financial reporting purposes on the basis of GAAP. For the  avoidance of doubt, operating leases will not be deemed Capitalized Lease Obligations.        “Cash Equivalents” means:                                        6  EU-DOCS\26039728.6 





 






        (1)   securities  issued  or  directly  and  fully  Guaranteed  or  insured  by  the  United  States             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             the full faith and credit of such country or such member state is pledged in support             thereof), having maturities of not more than two years from the date of acquisition;        (2)   certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits             or bankers’ 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 paper is             rated at least “A-1” or the equivalent thereof by S&P, at least “P-1” or the equivalent             thereof by Moody’s or “F-1” or the equivalent thereof by Fitch (or if at the time neither             is  issuing  comparable  ratings,  then  a  comparable  rating  of  another  Nationally             Recognized Statistical Rating Organization) or (b) (in the event that such bank or trust             company does not have commercial paper which is rated) having combined capital and             surplus in excess of $500 million;        (3)   repurchase obligations with a term of not more than 30 days for underlying securities             of the types described in clauses (1) and (2) above entered into with any bank meeting             the qualifications specified in clause (2) above;        (4)   commercial paper rated at the time of acquisition thereof at least “A-2” or the equivalent             thereof by S&P, “P-2” or the equivalent thereof by Moody’s, “F-2” or the equivalent             thereof by Fitch or carrying an equivalent rating by a Nationally Recognized Statistical             Rating Organization, if both of the two named rating agencies cease publishing ratings             of investments or, if no rating is available in respect of the commercial paper, the issuer             of  which  has  an  equivalent  rating  in  respect  of  its  long-term  debt,  and  in  any case             maturing within one year after the date of acquisition thereof;        (5)   readily  marketable  direct  obligations  issued  by  any  state  of  the  United  States  of             America,  the  United  Kingdom,  Switzerland,  Canada,  any  member  of  the  European             Union or any political subdivision thereof, in each case, having one of the two highest             rating  categories  obtainable  from  either  Moody’s, S&P or  Fitch (or,  if  at  the  time,             neither is issuing comparable ratings, then a comparable rating of another Nationally             Recognized Statistical Rating Organization) with maturities of not more than two years             from the date of acquisition;        (6)   Indebtedness or Preferred Stock issued by Persons with a rating of “BBB-” or higher             from S&P, “Baa3” or higher from Moody’s or “BBB-” or higher from Fitch (or, if at             the time, neither is issuing comparable ratings, then a comparable rating of another             Nationally Recognized Statistical Rating Organization) with maturities of 12 months or             less from the date of acquisition;        (7)   bills of exchange issued in the United States, Canada, a member state of the European             Union,  Switzerland  or  the  United  Kingdom,  eligible  for  rediscount at  the  relevant             central bank and accepted by a bank (or any dematerialized equivalent); and        (8)   interests in any investment company, money market or enhanced high yield fund which             invests 95% or more of its assets in instruments of the type specified in clauses (1)             through (7) above.        “CFC” means a “controlled foreign corporation” within the meaning of Section 957(a) of the  Code.        “CFC Holdco” means a Subsidiary that has no material assets other than equity interests in,  and/or indebtedness of, each as determined for U.S. federal income tax purposes, one or more Foreign                                         7  EU-DOCS\26039728.6 





 






   Subsidiaries that are CFCs, including the indirect ownership of such equity interests or indebtedness  through one or more CFC Holdcos that have no other material assets.        “Change of Control” means the occurrence of any of the following:        (1)   the  consummation  of  any  transaction  (including,  without  limitation,  any  merger  or             consolidation), the result of which is that any Person (including any “person” (as that             term is used in Section 13(d)(3) of the Exchange Act)) other than one or more Permitted             Holders  (or  a  group  controlled  by  one  or  more  Permitted  Holders)  becomes  the             Beneficial  Owner,  directly  or  indirectly,  of  more  than 50%  of  the  issued  and             outstanding  Voting  Stock  of  the  Issuer  (or  any  Successor  Company),  measured  by             voting power rather than number of shares;        (2)   following  the  first  Public  Offering  by  an  IPO  Entity, during  any  period  of  two             consecutive  years,  individuals  who  at  the  beginning  of  such  period  constituted  the             majority of the directors (excluding any employee representatives, if any) on the Board             of Directors of such IPO Entity (together with any new directors whose election by the             majority  of  such  directors  on  such  Board  of  Directors  of  the IPO Entity  or  whose             nomination for election by shareholders of the IPO Entity, as applicable, was approved             by a vote of the majority of such directors on the Board of Directors of the IPO Entity             then still in office who were either directors at the 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 (excluding any employee representatives, if             any) on the Board of Directors of such IPO Entity, then in office; or        (3)   the direct or indirect sale, lease, transfer, conveyance or other disposition (other than             by way of merger, consolidation or other business combination transaction), in one or             a series of related transactions, of all or substantially all of the assets of the Issuer (or             any Successor Company) and its Restricted Subsidiaries, taken as a whole, to a Person             (including any “person” as defined above), other than a Permitted Holder (or a group             controlled by one or more Permitted Holders).        “Change of Control Tender” means the offer to purchase all of the Existing Notes from the  holders thereof made or to be made by the Issuer in connection with the Acquisition.        “Clearstream” means  Clearstream  Banking,  société  anonyme,  or  any  successor  securities  clearing agency.        “Code” means the U.S. Internal Revenue Code of 1986, as amended.        “Collateral” means all assets and properties subject to Liens created pursuant to any Security  Document to secure any of the First Lien Obligations, including the Notes Collateral.        “Commodity Hedging Agreements” means, in respect of a Person, any commodity purchase  contract, commodity futures or forward contract, commodities option contract or other similar contract  (including commodities derivative agreements or arrangements), to which such Person is a party or a  beneficiary.        “Competition Laws” means any federal, state, foreign, multinational or supranational antitrust,  competition or trade regulation statutes, rules, regulations, orders, decrees, administrative and judicial  doctrines  and  other  laws  that  are  designed  or  intended  to  prohibit,  restrict  or  regulate  actions  or  transactions  having  the  purpose  or  effect  of  monopolization  or  restraint  of  trade  or  lessening  of  competition through merger or acquisition or effectuating foreign investment.        “Completion Date” means the date on which the Acquisition is consummated.                                         8  EU-DOCS\26039728.6 





 






        “Consolidated  EBITDA” for  any  period  means,  without  duplication,  the  Consolidated  Net  Income for such period less the aggregate amount of lease payments during such period under the lease- back arrangements entered into in connection with the Permitted Sale and Leaseback Transactions (for  avoidance of doubt, for the purposes of this definition of Consolidated EBITDA, the treatment of such  payments under GAAP shall be disregarded), plus the following to the extent deducted in calculating  such Consolidated Net Income:        (1)   Consolidated Interest Expense and Receivables Fees;        (2)   Consolidated Income Taxes;        (3)   consolidated depreciation expense;        (4)   consolidated amortization and impairment expense;        (5)   Parent Expenses of a Parent;        (6)   any expenses, charges or other costs  related to any Equity Offering (including of a             Parent),  Investment,  acquisition  (including  amounts  paid  in  connection  with  the             acquisition or retention of one or more individuals comprising part of a management             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             the  industry  at  the  time  of  such  acquisition),  disposition,  recapitalization  or  the             Incurrence of any Indebtedness permitted by this Indenture (whether or not 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 Issuer);        (7)   any minority interest expense (whether paid or not) consisting of income attributable to             minority equity interests of third parties in such period or any prior period or any net             earnings,  income  or  share  of  profit  of  any  Associates,  associated  company  or             undertaking;        (8)   the  amount  of  management,  monitoring,  consultancy  and  advisory  fees  and  related             expenses or any payments for financial advisory, financing, underwriting or placement             services or any payments pursuant to franchising agreements, business service related             agreements or other similar arrangements paid in such period (or 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; provided that any payments             for such fees and related expense shall not be included in 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 any such prior period;        (9)   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             accrual of or reserve for cash charges in any future period) or other non-cash items             classified by the Issuer as special items less other non-cash items of income increasing             Consolidated Net Income (other than any non-cash items increasing such Consolidated             Net Income pursuant to clauses (1) through (13) 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);         (10)  (x) any  loss  from  discontinued  operations  (but  if  such  operations  are  classified  as             discontinued due to the fact that they are subject to an agreement to dispose of such             operations,  only  when  and  to  the  extent  such  operations  are  actually  disposed  of),             reduced by (y) any income from discontinued operations (but if such operations are             classified as discontinued due to the fact that they are subject to an agreement to dispose                                        9  EU-DOCS\26039728.6 





 






              of such operations, only when and to the extent such operations are actually disposed             of); and        (11)  to the extent not already otherwise included herein, adjustments and add-backs of the             nature used in connection with the calculation of “Pro Forma Adjusted EBITDA” (as             defined in the Offering Memorandum) included in the Offering Memorandum.        “Consolidated Income Taxes” means taxes or other payments, including deferred Taxes, based  on income, profits or capital of the Issuer and the Restricted Subsidiaries whether or not paid, estimated,  accrued or required to be remitted to any governmental authority.        “Consolidated Interest Expense” means, for any period (in each case, determined on the basis  of GAAP), the consolidated net interest income/expense of the Issuer and the Restricted Subsidiaries,  whether  paid  or  accrued,  plus  or  including  (without  duplication)  any  interest,  costs  and  charges  consisting of:        (1)   interest expense attributable to Capitalized Lease Obligations (excluding any interest             expense attributable to any lease-back arrangements entered into in connection with the             Permitted Sale and Leaseback Transactions);        (2)   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 and             excluding any expense from the discounting of any Indebtedness in connection with the             applications of purchase accounting in connection with an acquisition (including the             Transactions);        (3)   non-cash interest expense;        (4)   dividends or other distributions in respect of all Disqualified Stock of the Issuer and all             Preferred Stock of any Restricted Subsidiary, to the extent held by Persons other than             the Issuer or a Subsidiary of the Issuer;        (5)   the  consolidated  interest  expense  that  was  capitalized  during  such  period  (without             duplication);        (6)   net  payments  and  receipts  (if  any)  pursuant  to  Hedging  Obligations  (other  than             Currency  Agreements)  (excluding  unrealized  mark-to-market  gains  and  losses             attributable to Hedging Obligations (other than Currency Agreements));        (7)   any interest actually paid by the Issuer or any Restricted Subsidiary on Indebtedness of             another Person that is guaranteed by the Issuer or any Restricted Subsidiary or secured             by a Lien on assets of the Issuer or any Restricted Subsidiary; and        (8)   premiums,  penalties,  annual  agency  fees,  penalties  for  failure  to  comply  with             registration obligations (if applicable) and any amendment fees, in each case, related to             any Indebtedness of the Issuer or any Restricted Subsidiaries.   Notwithstanding any of the foregoing, Consolidated Interest Expense shall not include (i) any interest  accrued,  capitalized  or paid in respect of Subordinated  Shareholder Funding, (ii) any commissions,  discounts,  yield  and  other  fees  and  charges  related  to  a  Qualified  Receivables  Financing,  (iii) any  payments on any operating leases, including without limitation any payments on any lease, concession  or  license  of  property  (or Guarantee thereof)  which  would  be  considered  an  operating  lease  under  GAAP, (iv) net payments and receipts (if any) pursuant to Currency Agreements (including unrealized  mark-to-market  gains  and  losses  attributable  to  Hedging  Obligations)  and  (v) any  pension  liability  interest costs.                                        10  EU-DOCS\26039728.6 





 






        “Consolidated Net Income” means, for any period, the net income (loss) of the Issuer and the  Restricted Subsidiaries determined on a consolidated basis on the basis of GAAP; provided, however,  that there will not be included in such Consolidated Net Income:        (1)   any net income (loss) of any Person if such Person is not a Restricted Subsidiary, except             that the Issuer’s equity in the net income of any such Person for such period will be             included in such Consolidated Net Income up to the aggregate amount of cash or Cash             Equivalents actually distributed by such Person during such period to the Issuer or a             Restricted  Subsidiary  as  a  dividend  or  other  distribution  or  return  on  investment             (subject, in the case of a dividend or other distribution or return on investment to a             Restricted Subsidiary, to the limitations contained in clause (2) below);        (2)   solely for the purpose of determining the amount available for Restricted Payments             under Section 4.05(a)(5)(C)(i), any net income (loss) of any Restricted Subsidiary that             is not a Guarantor if such Subsidiary is subject to restrictions, directly or indirectly, on             the payment of dividends or the making of distributions by such Restricted Subsidiary,             directly  or  indirectly,  to  the  Issuer  by  operation  of  the  terms  of  such  Restricted             Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or             governmental  rule  or  regulation  applicable  to  such  Restricted  Subsidiary  or  its             shareholders (other than (a) restrictions that have been waived or otherwise released,             (b) restrictions  pursuant  to this  Indenture,  the  Notes,  the New  Credit Facilities,  the             Existing Notes and the Existing Notes Indenture, the Intercreditor Agreement and any             Additional Intercreditor Agreement, (c) contractual or legal restrictions in effect on the             Issue Date with respect to a Restricted Subsidiary (including pursuant to the agreements             specified in Section 4.07(b)(3) and other restrictions with respect to such Restricted             Subsidiary that, taken as a whole, are not materially less favorable to the Holders than             such restrictions in effect on the Issue Date, and (d) restrictions as in effect on the Issue             Date specified in Section 4.07(b)(12) except that the Issuer’s equity in the net income             of any such Restricted Subsidiary for such period will be 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 Equivalents actually distributed             or that could have been distributed by such Restricted Subsidiary during such period to             the Issuer or another Restricted Subsidiary as a dividend or other distribution (subject,             in the case of a dividend to another Restricted Subsidiary, to the limitation contained in             this clause (2));        (3)   any net gain (or loss) realized upon the sale, abandonment or other disposition of any             asset  or  disposed  operations  of  the  Issuer  or  any  Restricted  Subsidiary  (including             pursuant to any sale/ leaseback transaction) which is not sold or otherwise disposed of             in the ordinary course of business (as determined in good faith by an Officer of the             Issuer) or returned surplus assets of any Pension Plan;        (4)   any extraordinary, exceptional, unusual or nonrecurring gain, loss, charge or expense             or any charges, expenses or reserves in respect of any restructuring, redundancy or             severance  or  any  expenses,  charges,  reserves,  gains  or  other  costs  related  to  the             Transactions  and, to the  extent not otherwise included  in this  clause (4): recruiting,             retention  and  relocation  costs;  signing  bonuses  and  related  expenses  and  one-time             compensation charges; curtailments or modifications to pension and post-retirement             employee benefit plans; transaction and refinancing bonuses and special bonuses paid             in connection with dividends and distributions to equity holders; start-up, transition,             strategic initiative (including any multi-year strategic initiative) and integration costs,             charges or expenses; costs, charges and expenses related to the start-up, pre-opening,             opening,  closure,  and/or  consolidation  of  operations,  offices  and  facilities;  business             optimization  costs,  charges  or  expenses;  costs,  charges  and  expenses  incurred  in             connection  with  new  product  design,  development  and  introductions;  costs  and                                       11  EU-DOCS\26039728.6 





 






              expenses  incurred  in  connection  with  intellectual  property  development  and  new             systems  design;  costs  and  expenses  incurred  in  connection  with  implementation,             replacement,  development  or  upgrade  of  operational,  reporting  and  information             technology systems and technology initiatives; any costs, expenses or charges relating             to any governmental investigation or any litigation or other dispute (including with any             customer); costs and expenses in respect of warranty payments; or any fees, charges,             losses, costs and expenses incurred during such period, or any amortization thereof for             such  period,  in  connection  with  or  related  to  any  acquisition,  Restricted  Payment,             Investment, recapitalization, asset sale, issuance, incurrence, registration or repayment             or modification  of  Indebtedness,  issuance  or  offering  of  Capital  Stock,  refinancing             transaction  or  amendment,  modification  or  waiver  in  respect  of  the  documentation             relating to any such transaction and any charges or non-recurring merger costs incurred             during such period as a result of any such transaction;        (5)   the cumulative effect of a change in accounting principles;        (6)   any non-cash compensation charge or expense arising from any grant of stock, stock             options  or  other  equity  based  awards  and  any  non-cash  deemed finance  charges  in             respect of any pension liabilities or other provisions;        (7)   all deferred financing costs written off and premiums paid or other expenses incurred             directly in connection with any early extinguishment of Indebtedness and any net gain             (loss) from any write-off or forgiveness of Indebtedness;        (8)   any unrealized gains or losses in respect of Hedging Obligations or other derivative             instruments or any ineffectiveness recognized in earnings related to qualifying hedge             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;        (9)   any unrealized foreign currency translation gains or losses in respect of Indebtedness             of any Person denominated in a currency other than the functional currency of such             Person and any unrealized foreign exchange gains or losses relating to translation of             assets and liabilities denominated in foreign currencies;        (10)  any unrealized foreign currency translation or transaction gains or losses in respect of             Indebtedness or other obligations of the Issuer or any Restricted Subsidiary owing to             the Issuer or any Restricted Subsidiary;        (11)  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             another  Person  or  business  or  resulting  from  any  reorganization  or  restructuring             involving the Issuer or its Subsidiaries;        (12)  any goodwill or other intangible asset impairment charge or write-off; and        (13)  the impact of capitalized, accrued or accreting or pay-in-kind interest or principal on             Subordinated Shareholder Funding.        “Consolidated  Net  Leverage” means  (A) the  sum,  without  duplication,  of  the  aggregate  outstanding Specified Indebtedness of the Issuer and its Restricted Subsidiaries on a consolidated basis  (excluding  (i) Hedging  Obligations  and  (ii) any  revolving  Indebtedness  Incurred  pursuant  to  Section 4.04 in  an  amount  not  to  exceed  the  greater  of  (x)  $75 million  and  (y)  33.3%  Pro  Forma  EBITDA for the most recently ended four full fiscal quarters for which internal financial statements of  the Issuer are available immediately preceding the date of determination), less (B) the aggregate amount  of cash and Cash Equivalents of the Issuer and the Restricted Subsidiaries on a consolidated basis.                                       12  EU-DOCS\26039728.6 





 






        “Consolidated  Net  Leverage  Ratio” means,  as  of  any  date  of  determination,  the  ratio  of  (x) Consolidated Net Leverage at such date to (y) the aggregate amount of Pro Forma EBITDA for the  most recently ended four full fiscal quarters for which internal financial statements of the Issuer are  available  immediately  preceding  the  date  of  determination; provided, however,  that  the pro  forma  calculation of the Consolidated Net Leverage Ratio shall not give effect to (i) any Indebtedness incurred  on  the  date  of  determination  pursuant  to  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).   For  the  avoidance  of  doubt,  in determining  Consolidated  Net  Leverage  Ratio,  no  cash  or  Cash  Equivalents shall be included that are the proceeds of Indebtedness in respect of which the calculation  of the Consolidated Net Leverage Ratio is to be made.        “Consolidated Net Senior Secured Leverage” means (A) the sum of the aggregate outstanding  Senior  Secured  Indebtedness  of  the  Issuer  and  its  Restricted  Subsidiaries  (excluding  (i) Hedging  Obligations and (ii) any revolving Indebtedness Incurred pursuant to Section 4.04 in an amount not to  exceed the greater of (x) $75 million and (y) 33.3% Pro Forma EBITDA for the most recently ended  four full fiscal quarters for which internal financial statements of the Issuer are available immediately  preceding the date of determination), less (B) the aggregate amount of cash and Cash Equivalents of  the Issuer and the Restricted Subsidiaries on a consolidated basis.        “Consolidated Net Senior Secured Leverage Ratio” means, as of any date of determination, the  ratio of (x) Consolidated Net Senior Secured Leverage at such date to (y) the aggregate amount of Pro  Forma  EBITDA for  the  most  recently  ended  four  full  fiscal quarters  for  which  internal  financial  statements  of  the  Issuer  are  available  immediately  preceding  the  date  of  determination; provided,  however, that the pro forma calculation of the Consolidated Net Senior Secured Leverage Ratio shall  not give effect to (i) any Indebtedness incurred on the date of determination pursuant to 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).   For the avoidance of doubt, in determining Consolidated Net Senior Secured Leverage Ratio, no cash  or Cash Equivalents shall be included that are the proceeds of Indebtedness in respect of which the  calculation of the Consolidated Net Senior Secured Leverage Ratio is to be made.        “Contingent Obligations” means, with respect to any Person, any obligation of such Person  guaranteeing  in  any  manner,  whether  directly  or  indirectly,  any  operating  lease,  dividend  or  other  obligation  that  does  not  constitute  Indebtedness  (“primary  obligations”)  of  any  other  Person  (the  “primary obligor”), including any obligation of such Person, whether or not contingent:        (1)   to purchase any such primary obligation or any property constituting direct or indirect             security therefor;        (2)   to advance or supply funds:              (a)   for the purchase or payment of any such primary obligation; or              (b)   to  maintain  the  working  capital  or  equity  capital  of  the  primary  obligor  or                   otherwise to maintain the net worth or solvency of the primary obligor; or        (3)   to purchase property, securities or services primarily for the purpose of assuring the             owner of any such primary obligation of the ability of the primary obligor to make             payment of such primary obligation against loss in respect thereof.        “Covered Jurisdiction” has the meaning ascribed to it in the Agreed Security Principles.                                         13  EU-DOCS\26039728.6 





 






        “Credit  Agreement  Secured  Parties”  has  the  meaning  ascribed  to  it  in  the  Intercreditor  Agreement.        “Credit Facility” means, with respect to the Issuer or any of its Subsidiaries, one or more debt  facilities, arrangements, instruments, trust deeds, note purchase agreements or indentures or commercial  paper facilities and overdraft facilities (including the New Credit Facilities) with banks, institutions,  funds or investors providing for revolving credit loans, term loans, receivables 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,  debentures  letters  of  credit  or  other  Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured,  refinanced, repaid, increased or extended in whole or in part from time to time (and whether in whole  or in part and whether or not with the original administrative agent and lenders or another administrative  agent or agents or trustees or other banks, institutions or investors and whether provided under one or  more  credit  or  other  agreements,  indentures,  financing  agreements  or  otherwise)  and  in  each  case  including  all  agreements,  instruments  and  documents  executed  and  delivered  pursuant  to  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,  agreements,  security  agreements  and  collateral  documents). Without limiting the generality of the foregoing, the term “Credit Facility” shall include  any agreement or instrument (1) changing the  maturity of any  Indebtedness Incurred thereunder or  contemplated  thereby,  (2) adding  Subsidiaries  of  the  Issuer  as  additional  borrowers  or  guarantors  thereunder, (3) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed  thereunder or (4) otherwise altering the terms and conditions thereof.        “Currency Agreement” means, in respect of a Person, any foreign exchange contract, currency  swap agreement, currency futures contract, currency option contract, cap, floor, ceiling, collar, currency  derivative or other similar agreement to which such Person is a party or beneficiary.        “Custodian” means  any  receiver,  trustee,  examiner,  assignee,  liquidator,  administrator,  administrative receiver, custodian or similar official under any Bankruptcy Law.        “Default” means any event which is, or after giving notice or with the passage of time or both  would be, an Event of Default.        “Definitive Registered Note” means a certificated Note registered in the name of the Holder  thereof that does not include the Global Notes Legend.        “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global  form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all  successors  thereto  appointed  as  Depositary  hereunder  and  having  become  such  pursuant  to  the  applicable provision of this Indenture.        “Designated Non-Cash Consideration” means the fair market value (as determined in good  faith  by  the  Issuer)  of  non-cash  consideration  received  by  the  Issuer  or  a  Restricted  Subsidiary  in  connection  with  an  Asset  Disposition  that is  so  designated  as  Designated  Non-Cash  Consideration  pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash,  Cash Equivalents or Temporary Cash Investments received in connection with a subsequent payment,  redemption,  retirement,  sale  or  other  disposition  of  such  Designated  Non-Cash  Consideration. A  particular item of Designated 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 compliance with Section 4.08.        “Designated Preference Shares” means, with respect to the Issuer, Preferred Stock (other than  Disqualified Stock) (a) that is issued for cash (other than to the Issuer or a Subsidiary of the Issuer or  an employee stock ownership plan or trust established by the Issuer or any such Subsidiary for the  benefit  of  their  employees  to  the  extent  funded  by  the  Issuer  or  such  Subsidiary)  and  (b) that  is                                       14  EU-DOCS\26039728.6 





 






   designated as “Designated Preference Shares” pursuant to an Officer’s Certificate of the Issuer at or  prior to the issuance thereof, the Net Cash Proceeds of which are excluded from the calculation set forth  in Section 4.05(a)(5)(C)(ii).        “Disinterested Director” means, with respect to any Affiliate Transaction, a member of the  Board of Directors having no material direct or indirect financial interest in or with respect to such  Affiliate Transaction. A member of the Board of Directors of the Issuer shall be deemed not to have  such a financial interest by reason of such member’s holding Capital Stock of the Issuer or any Parent  or any options, warrants or other rights in respect of such Capital Stock.        “Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which  by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable)  or upon the happening of any event:        (1)   matures or is mandatorily redeemable for cash or in exchange for Indebtedness pursuant             to a sinking fund obligation or otherwise;        (2)   is  convertible  or  exchangeable  for  Indebtedness  or  Disqualified  Stock  (excluding             Capital Stock which is convertible or exchangeable solely at the option of the Issuer or             a Restricted Subsidiary); or        (3)   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             the option of the holder of the Capital Stock in whole or in part,   in each case, on or prior to the earlier of (a) the Stated Maturity of the Notes or (b) the date on which  there are no Notes outstanding; provided, however, that (i) only the portion of Capital Stock which so  matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the  option of the holder thereof prior to such date will be deemed to be Disqualified Stock and (ii) any  Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right  to require the Issuer to repurchase such Capital Stock upon the occurrence of a change of control or  asset  sale  (howsoever  defined  or  referred  to)  shall  not  constitute  Disqualified  Stock  if  any  such  redemption or repurchase obligation is subject to compliance by the relevant Person with Section 4.05.        “dollar” or “$” means the lawful currency of the United States of America.        “Dollar  Equivalent” means,  with respect to any  monetary amount in a  currency other than  dollars (“Other Currency”), at any time of determination thereof by the Issuer, the 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  in The  Financial  Times in  the  “Currency Rates” section (or, if The Financial Times is no longer published, or if such information is  no longer available in The Financial Times, such source as may be selected in good faith by the Issuer)  on the date of such determination.        “Domestic Subsidiary” means any direct or indirect Subsidiary that is organized under the laws  of the United States, any state thereof or the District of Columbia.        “DTC” means The Depository Trust Company.        “Equity Offering” means a public or private sale of (x) Capital Stock of the Issuer or (y) Capital  Stock  or  other  securities  of  a  Parent  or  an  Affiliate,  the  proceeds  of  which  are  contributed  as  Subordinated Shareholder Funding or to the equity of the Issuer or any of its Restricted Subsidiaries, in  each case other than:        (1)   Disqualified Stock;                                        15  EU-DOCS\26039728.6 





 






        (2)   Designated Preference Shares;        (3)   offerings registered on Form S-8 (or any successor form) under the Securities Act or             any similar offering in other jurisdictions;        (4)   any  such  sale  to  an  Affiliate  of  the  Issuer,  including  the  Issuer  or  a  Restricted             Subsidiary; and        (5)   any such sale that constitutes an Excluded Contribution.        “Escrow Agent” means the escrow agent appointed pursuant to the Escrow Agreement.          “Escrow Agreement” means an escrow agreement by and among the Initial Issuer, the Trustee  and  an  escrow  agent  customary  for  financings  similar  to  the  offering  of  the  Initial  Notes  and  on  substantially  the  same  terms  as  Loan  Escrow  Documents  (as  defined  in  the  New  Credit  Facilities  Agreement).          “Escrowed Proceeds” means the proceeds from the offering of any debt securities or other  Indebtedness  paid  into  an  escrow  account  with  an  independent  escrow  agent  on  the  date  of  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 occurrence of certain  events. The term “Escrowed Proceeds” shall include any interest earned on the amount held in escrow.        “Euroclear” means Euroclear Bank SA/NV or any successor securities clearing agency.        “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules  and regulations of the SEC promulgated thereunder, as amended.        “Excluded Assets” means each of the following:        (a)   subject to certain conditions, any “intent-to-use” application for registration of certain  trademarks,         (b)   margin stock;         (c)   assets subject to certificates of title;         (d)   letter-of-credit rights;         (e)   commercial tort claims with a value, individually, of less than $2.5 million;         (f)   any  governmental  or  regulatory  licenses,  authorizations,  certificates,  charters,  franchises, approvals and consents (whether federal, state or otherwise) to the extent a security interest  therein is prohibited or restricted thereby or requires any consent, acknowledgment or authorization  from  a  governmental  authority  not  obtained  (without  any  requirement  to  obtain  such  consent,  acknowledgment  or  authorization)  (after  giving  effect  to  applicable  anti-assignment  provisions  of  applicable law);         (g)   any  lease,  license  or  agreement  or  any  property  that  is  subject  to  a  capital  lease,  purchase money security interest or similar arrangement to the extent that a grant of a security interest  therein (x) would violate or invalidate such lease, license or agreement or purchase money security  interest or similar arrangement or create a right of termination in favor of any other party thereto (other  than BidFair, the Issuer or any of its subsidiaries) to the extent such approval, consent or authorization  is not obtained or (y) would require governmental or regulatory approval, consent or authorization not  obtained (without any requirement to obtain such approval, consent or authorization) (after giving effect  to applicable anti-assignment provisions of applicable law);                                         16  EU-DOCS\26039728.6 





 






        (h)   assets to  the  extent  the  pledge  thereof  or  grant  of  security  interests  therein  (x) is  prohibited or restricted by any applicable law, rule or regulation or would require any consent, approval  or authorization of any governmental or regulatory authority not obtained (without any requirement to  obtain  such  any  consent,  approval  or  authorization),  (y)  would  render  such  asset  invalid  or  unenforceable under applicable law (solely with respect to any intellectual property), or (z) is 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 Completion Date or at the time of the acquisition of such  asset, as applicable, and was not incurred in contemplation thereof (other than in the case of capital  leases and purchase money financings)) or governmental or regulatory authority not obtained (without  any requirement to obtain such consent, approval, license or other authorization) (after giving effect to  applicable anti-assignment provisions of applicable law);         (i)   assets to the extent a security interest in such assets would result in material adverse tax  consequences to the Issuer and the Restricted Subsidiaries, taken as a whole as reasonably determined  by the Issuer;         (j)   any leasehold or freehold interest in any real property (and improvements and fixtures  relating thereto);         (k)   payroll accounts, zero balance accounts, any withholding tax, benefits, escrow, trust,  customs or any other fiduciary account and any account having a balance not exceeding $2.5 million;         (l)   Capital Stock in Immaterial Subsidiaries and Excluded Subsidiaries (other than first tier  CFCs and first tier CFC Holdcos that are Restricted Subsidiaries; provided that in the case of any first  tier CFC that is not organized in U.S., or any of England and Wales, Luxembourg or Hong Kong (for  so long as there are Guarantors organized these non-US jurisdictions) or first tier CFC 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; provided, that, for the  avoidance of doubt, the pledged Capital Stock of the Guarantors will not be subject to such limitation);         (m)   in the case of the U.S. Guarantor, any assets located in, or 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 and (ii) assets that can be perfected by the filing of a UCC financing  statement and (iii) any material intellectual property located in a Covered Jurisdiction;         (n)   any  property  and/or  related  rights  and/or  assets  (including  loan  receivables  and  collateral therefor) that would otherwise be included in the Notes Collateral (and such property and/or  related rights and/or assets (including loan receivables and collateral therefor) shall not be deemed to  constitute a part of the Notes Collateral) if such property has been sold or otherwise transferred in  connection with a securitization transaction or other financing arrangement not prohibited under the  Notes;         (o)   any other assets excluded by application of the Agreed Security Principles set forth in  Exhibit E hereto; and         (p)   those assets as to which the Issuer shall reasonably determine that the cost, burden or  difficulty of obtaining such a security interest or perfection thereof (including any material adverse tax  consequences to a Guarantor, the Issuer, or any Subsidiary of the Issuers) are excessive in relation to  the benefit to the holders of the Notes of the security to be afforded thereby.         Notwithstanding  clauses (a) – (p) of  this  definition,  Excluded  Assets  shall  not  include  any  proceeds, products, substitutions or replacements of Excluded Assets (unless such proceeds, products,  substitutions or replacements would otherwise constitute Excluded Assets).        “Excluded Contribution” means Net Cash Proceeds and the fair market value (determined by  the Issuer at the time of such contribution or, at the option of the Issuer, at the date of entry into of a                                       17  EU-DOCS\26039728.6 





 






   commitment, contract or resolution with respect to such Excluded Contribution, and not adjusted for  any subsequent changes in fair market value) of marketable securities or property or assets or Capital  Stock of any Person, in each case, received by the Issuer as capital contributions to the equity (other  than through the issuance of Disqualified Stock or Designated Preference Shares of the Issuer) after the  Completion Date or from the issuance or sale (other than to the Issuer, a Restricted Subsidiary or an  employee stock ownership plan or trust established by the Issuer or any Subsidiary of the Issuer for the  benefit of its employees to the extent funded by the Issuer or any Restricted Subsidiary) of Capital Stock  (other than Disqualified Stock or Designated Preference Shares) or Subordinated Shareholder Funding  of the Issuer after the Issue Date, in each case, (i) other than the Equity Contribution and (ii) to the  extent designated as an Excluded Contribution pursuant to an Officer’s Certificate of the Issuer.        “Excluded Subsidiary” means (1) any Subsidiary that is not a Wholly Owned Subsidiary of the  Issuer, (2) any CFC, (3) any Subsidiary that is a direct or indirect Subsidiary of (i) a CFC or (ii) a CFC  Holdco, (4) a CFC Holdco, (5) any Subsidiary, including any regulated entity that is subject to net worth  or net capital or similar capital and surplus restrictions, that is prohibited or restricted by applicable law,  accounting policies or by contractual obligation existing on the Completion Date and any amendments,  restatements, modifications, renewals, supplements, refundings, replacements or refinancings of such  agreements (provided that such contractual obligations (A) were not incurred in contemplation of the  Acquisition (or, with respect to any Subsidiary acquired by the Issuer or a Restricted Subsidiary after  the Completion Date (and so long as such contractual obligation was not incurred in contemplation of  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 such Guarantee would  require governmental (including regulatory) or third party consent, approval, license or authorization,  (6) any  special  purpose  securitization  vehicle  (or  similar  entity),  including  any  Receivables Entity,  (7) any  not  for  profit  Subsidiary,  (8) any  other  Subsidiary  with  respect to  which,  in  the  reasonable  judgment of the Issuer, the burden or cost (including any adverse tax consequences) of providing the  Guarantee will outweigh the benefits to be obtained by the Holders therefrom and (9) each Unrestricted  Subsidiary; provided that any such Subsidiary that 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 Issuer or any other Guarantor, and provided further, clauses (2), (3) and (4) of this definition shall  not apply unless the Issuer reasonably determines that the exclusion of any such Subsidiary from the  definition of Excluded Subsidiary would or is likely to result in material adverse tax consequences to  the Issuer and the Restricted Subsidiaries, taken as a whole.        “Existing  Credit  Facility”  means  the  asset  based  lending  facility  under  the  Existing  Credit  Facility Agreement.         “Existing Credit Facility Agreement” means the credit agreement dated as of June 26, 2018, as  amended or supplemented, among, inter alios, the Target, certain lenders party thereto and JPMorgan  Chase Bank, N.A. as administrative agent.        “Existing  Indenture”  means  the  indenture  dated  as  of  December  12,  2017,  as  amended  or  supplemented, pursuant to which the Target issued the Existing Notes.        “Existing Notes” means the $400 million aggregate principal amount of 4.875% Senior Notes  due 2025 issued by the Target under the Existing Indenture, which are subject to the Change of Control  Tender.        “fair  market  value” wherever  such  term  is  used  in this Indenture (except  as  otherwise  specifically  provided  in this Indenture),  may  be  conclusively  established  by  means  of  an Officer’s  Certificate or a resolution of the Board of Directors of the Issuer setting out such fair market value as  determined by such Officer or such Board of Directors in good faith.        “First Lien Obligations” means all indebtedness secured by a first priority lien on the Notes  Collateral.                                         18  EU-DOCS\26039728.6 





 






        “Fitch” means Fitch Ratings Inc. or any successor to the rating agency business thereof.        “Foreign Subsidiary” means any direct or indirect Subsidiary of the Issuer that is not a Domestic  Subsidiary.        “Global Note Legend” means the legend set forth in Section 2.06(g)(1) to be placed on each  Note certificate evidencing the Global Notes (and all Notes issued in exchange therefor or in substitution  thereof) except where otherwise permitted by the provisions of this Indenture.        “Global Notes” means, individually and collectively, each of the 144A Global Notes and the  Regulation S Global Notes, deposited with the Notes Custodian and registered in the name of Cede &  Co., as nominee of DTC.        “GAAP”  means  generally  accepted  accounting  principles  set  forth  in  the  opinions  and  pronouncements of the Accounting Principles Board of the American Institution of Certified Public  Accountants and statements and pronouncements of the Financial Accounting Standard Boards or in  such  other  statement  by  such  other  entity  as  have  been  approved  by  a  significant  segment  of  the  accounting profession as in effect from time to time; provided that at any date after the Issue Date, the  Issuer may make an irrevocable election to establish that “GAAP” shall mean GAAP as in effect on a  date that is on or prior to the date of such election other than with respect to Section 4.10 where GAAP  will continue to mean as in effect from time to time; and provided further that, at any time after the  Issue Date, the Issuer 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 Indenture) on the date of such election or, with respect to Section 4.10, as in effect from time  to time; provided further that any such election to apply IFRS, once made, shall be irrevocable and that  upon first reporting its fiscal year results under IFRS, it shall restate the financial statements required  to be delivered under Section 4.10, on the basis of IFRS for the fiscal year ending immediately prior to  the first fiscal year for which financial statements have been prepared on the basis of IFRS. The Issuer  shall give notice of any such election to the Trustee and the Holders.        “Global Trading Loan” means the loan from Sotheby’s Global Trading GmbH to Sotheby’s  Oatshare in aggregate principal amount of £29.1 million.        “Grantor” means each Person from time to time party to any Notes Security Document, in its  capacity as a grantor, pledgor, obligor, chargor or similar capacity thereunder.        “Group” means the Issuer and its Restricted Subsidiaries.        “Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly  guaranteeing any Indebtedness of any other Person, including any such obligation, direct or indirect,  contingent or otherwise, of such Person:        (1)   to purchase or pay (or advance or supply funds for the purchase or payment of) such             Indebtedness  of  such  other  Person  (whether  arising  by  virtue  of  partnership             arrangements, or by agreements to keep-well, to purchase assets, goods, securities or             services, to take-or-pay or to maintain financial statement conditions or otherwise); or        (2)   entered into primarily for purposes of assuring in any other manner the obligee of such             Indebtedness of the payment thereof or to protect such obligee against loss in respect             thereof (in whole or in part),   provided, however, that the term “Guarantee” will not include endorsements for collection or deposit in  the ordinary course of business or any guarantee of performance. The term “Guarantee” used as a verb  has a corresponding meaning.                                        19  EU-DOCS\26039728.6 





 






        “Guarantor” means (i)  each Initial  Guarantor  and  (ii) each  Person that  executes  a  Note  Guarantee in accordance with the provisions of this Indenture in its capacity as a guarantor of the Notes  and its respective successors and assigns, until the Note Guarantee of such Person has been released in  accordance with the provisions of this Indenture.        “Hedging Obligations” of any Person means the obligations of such Person pursuant to any  Interest Rate Agreement, Currency Agreement or Commodity Hedging Agreement.        “Holder” means each Person in whose name the Notes are registered.        “Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic  of China.          “IFRS” means  International  Financial  Reporting  Standards  as  issued  by  the  International  Accounting Standards Board or any successor board or agency as endorsed by the European Union.        “Immaterial Subsidiary” shall mean, as of any date of determination, any Restricted Subsidiary  that holds no more than 3% of the Total Assets of the Issuer and its Restricted Subsidiaries, taken as a  whole; provided, however, that if all of such Immaterial Subsidiaries in the aggregate hold assets in  excess of 3% of the Total Assets of the Issuer and its Restricted Subsidiaries, then only the Restricted  Subsidiaries with the smallest percentage of assets of the Issuer and its Restricted Subsidiaries (not  exceeding 3% individually or in the aggregate) would constitute “Immaterial Subsidiaries.”        “Incur” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise  become liable for; provided, however, that other than in the case of any action being taken in connection  with a Limited Condition Transaction, which shall be governed by Section 4.25, and any Indebtedness  or Lien Incurred pursuant to the provisions of Section 4.24, 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 (whether by merger, consolidation, acquisition or otherwise) will be deemed to  be Incurred by the Issuer or such Restricted Subsidiary at the time it becomes a Restricted Subsidiary  and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing and (2) any  Indebtedness pursuant to any Credit Facility, bridge facility, revolving credit or similar facility shall  only be “Incurred” at the time any funds are borrowed thereunder; provided further, that the Issuer in  its sole discretion may elect that (x) any Indebtedness or portion thereof pursuant to any Credit Facility,  bridge facility, revolving credit or similar facility shall be deemed to be “Incurred” at the time of entry  into  the  definitive  agreements  or  commitments  in  relation  to  any  such  facility  and/or  (y) any  Indebtedness the proceeds of which are cash-collateralized shall be deemed to be “Incurred” at the time  such proceeds are no longer cash-collateralized.        “Indebtedness” means,  with  respect  to  any  Person  on  any  date  of  determination  (without  duplication):        (1)   the principal of indebtedness of such Person for borrowed money;        (2)   the principal of obligations of such Person evidenced by bonds, debentures, notes or             other similar instruments;        (3)   all reimbursement obligations of such Person in respect of letters of credit, bankers’             acceptances or other similar instruments (the amount of such obligations being equal at             any time to the aggregate then undrawn and unexpired amount of such letters of credit             or other instruments plus the aggregate amount of drawings thereunder that have not             been reimbursed) (except to the extent such reimbursement obligations relate to trade             payables), in each case only to the extent that the underlying obligation in respect of             which the instrument was issued would be treated as Indebtedness;                                        20  EU-DOCS\26039728.6 





 






        (4)   the principal component of all obligations, or liquidation preference, of such Person             with respect to any Disqualified Stock or, with respect to any Restricted Subsidiary,             any Preferred Stock (but excluding, in each case, any accrued dividends);        (5)   the principal component of all Indebtedness of other Persons secured by a Lien on any             asset of such Person, whether or not such Indebtedness is assumed by such Person;             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             faith by the Issuer) and (b) the amount of such Indebtedness of such other Persons;        (6)   Guarantees by such Person of the principal component of Indebtedness of other Persons             to  the  extent  Guaranteed  by  such  Person (other  than  Guarantees  issued  pursuant  to             clause (20) of the definition of “Permitted Investment”); and        (7)   to the extent not otherwise included in this definition, net obligations of such Person             under Currency  Agreements,  Commodity  Hedging  Agreements  and  Interest  Rate             Agreements  (the  amount  of  any  such  obligations  to  be  equal  at  any  time  to  the             termination value of such agreement or arrangement giving rise to such obligation that             would be payable by such Person at such time).        The term “Indebtedness” shall not include (i) Subordinated Shareholder Funding, (ii) any lease,  concession or license of property (or Guarantee thereof) which would be considered an operating lease  under GAAP, (iii) prepayments of deposits received from clients or customers in the ordinary course of  business, (iv) any pension obligations, (v) Contingent Obligations, (vi) receivables sold or discounted,  whether recourse or non-recourse, including, for the avoidance of doubt, any obligations under or in  respect of Qualified Receivables Financing (including, without limitation, guarantees by a Receivables  Entity of the  obligations  of another Receivables Entity 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) Incurred prior to the Issue Date or in the ordinary course of business, (viii) non- interest  bearing  installment  obligations  and  accrued  liabilities  Incurred  in  the  ordinary  course  of  business that are not more than 120 days past due, (ix) Indebtedness in respect of the Incurrence by the  Issuer or any Restricted Subsidiary of Indebtedness in respect of standby letters of credit, performance  bonds or surety bonds provided by the Issuer or any Restricted Subsidiary in the ordinary course of  business to the extent such letters of credit or bonds are not drawn upon or, 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 by such Person of a demand for reimbursement following  payment on the letter of 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 thereof)  from  whom  such  assets  are  acquired  or  who  supplies  such  services  in  accordance  with  the  terms  pursuant to which the relevant assets were or are to be acquired or services were or are to be supplied,  (xi) any payroll accruals and (xii) Indebtedness Incurred by the Issuer or a Restricted Subsidiary in  connection with a 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 million, whose debt  has a rating immediately prior to the time such transaction is entered into, of at least A or the equivalent  thereof by S&P, A2 or the equivalent thereof by Moody’s or A or the equivalent thereof by Fitch and  (B) a substantially concurrent Investment is made by the Issuer or a Restricted Subsidiary in the form  of cash deposited with the lender of such Indebtedness, or a Subsidiary or Affiliate thereof, in amount  equal  to  such  Indebtedness. For  the avoidance  of  doubt  and  notwithstanding  the  above,  the  term  “Indebtedness” excludes any accrued expenses and trade payables and any obligations under guarantees  issued in connection with various operating and telecommunications licenses.        Subject to Section 4.24 and Section 4.25, the amount of Indebtedness of any Person at any time  in the case of a revolving credit or similar facility shall be the total amounts of funds borrowed and then  outstanding. The amount of Indebtedness of any Person at any date shall be determined as set forth  above  or  otherwise  provided  in  this  Indenture,  and  (other  than  with  respect  to  letters  of  credit  or                                       21  EU-DOCS\26039728.6 





 






   Guarantees or Indebtedness specified in clauses (5), (6) or (7) above) shall equal the amount thereof  that would appear on a balance sheet of such Person (excluding any notes thereto) prepared on the basis  of GAAP.        Notwithstanding the above provisions, in no event shall the following constitute Indebtedness:              (a)   in connection with the purchase by the Issuer or any Restricted Subsidiary of                   any business, any post-closing payment adjustments to which the seller may                   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                   after the closing;              (b)   for the avoidance of doubt, any obligations in respect of workers’ compensation                   claims, early retirement or termination obligations, pension fund obligations or                   contributions or similar claims, obligations or contributions or social security                   or wage Taxes;              (c)   parallel  debt  obligations,  to  the  extent  such  obligations  mirror  other                   Indebtedness;              (d)   Capitalized Lease Obligations; or              (e)   franchise and performance surety bonds or guarantees.        “Independent  Financial  Advisor” means  an  investment  banking  or  accounting  firm  of  international standing or any third party appraiser of international standing; provided, however, that  such firm or appraiser is not an Affiliate of the Issuer.        “Indenture” means this indenture, dated as of the Issue Date, as amended and supplemented  from time to time, among, inter alios, the Initial Issuer, as issuer, the Parent Guarantor and the Trustee.        “Indirect Participant” means a Person who holds a beneficial interest in a Global Note through  a Participant.        “Initial Guarantors” means, collectively, the Parent Guarantor, the Initial U.S. Guarantors and  the Initial Non-U.S. Guarantors.        “Initial Non-U.S. Guarantors” means, collectively, each existing material wholly-owned direct  or indirect subsidiary of the Issuer that is organized in England and Wales, Luxembourg or Hong Kong,  in each case that will guarantee the Notes and the New Credit Facilities within 90 business days of the  Completion Date, subject to the requirements set forth in this Indenture and the New Credit Facilities  Agreement.        “Initial Notes Collateral” refers collectively to (a) substantially all assets of the Issuer and the  Subsidiary  Guarantors  (other  than  any  Guarantor  incorporated  in  Luxembourg  (“Luxembourg  Guarantor”)), (b) without limiting clause (a) above, all of the equity interests (i) of the Issuer held by  the Parent Guarantor and (ii) of any Subsidiary Guarantor incorporated in the U.S., England and Wales,  Luxembourg and Hong Kong held by any Luxembourg Guarantor and (c) without limiting clause (a)  above, any intercompany loans (i) from the Parent Guarantor to the Issuer and (ii) from any Luxembourg  Guarantor  to  any  other  Restricted  Subsidiary  until  the  security  interests  therein  are  released  in  accordance with this Indenture, the Intercreditor Agreement and the Notes Security Documents.        “Initial U.S. Guarantors” means, collectively, each existing material wholly-owned direct or  indirect subsidiary of the Issuer that is organized in the U.S., in each case that will guarantee the Notes  and  the  New  Credit  Facilities  within  two  business  days  of the  Completion  Date,  subject  to  the  requirements set forth in this Indenture and the New Credit Facilities Agreement.                                       22  EU-DOCS\26039728.6 





 






        “Initial Additional First Lien Agreement” means this Indenture, together with the Global Notes  and the guarantees thereon.        “Initial  Additional  First  Lien  Obligations”  means  the  Additional  First  Lien  Obligations  pursuant to the Initial Additional First Lien Agreement.        “Intercreditor Agreement” means the intercreditor agreement dated on or around the Issue Date  between, amongst others, the Authorized Representative for the Credit Agreement Secured Parties, the  Collateral Agent for the Credit Agreement Secured Parties, the Authorized Representative for the Initial  Additional  Secured  Parties,  the  Collateral  Agent  for  the  Initial  Additional  Secured  Parties,  each  additional  Authorized  Representative  from  time  to time  and  the  Original  Investor (each as  defined  therein), as amended from time to time.        “Interest  Rate  Agreement” means,  with  respect  to  any  Person,  any  interest  rate  protection  agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement,  interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar  agreement or arrangement to which such Person is party or a beneficiary.        “Investment” means, with respect to any Person, all investments by such Person in other Persons  (including Affiliates) in the form of any direct or indirect advance, loan or other 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 excluding any debt or extension of credit represented  by a bank deposit other than a time deposit, but including any Guarantees incurred pursuant to clause  (20) of the definition of “Permitted Investments”) or capital contribution to (by means of any transfer  of cash or other property to others or any payment for property or services for the account or use of  others), or the Incurrence of a Guarantee of any obligation of, or any purchase or acquisition of Capital  Stock, Indebtedness or other similar instruments issued by, such other Persons and all other items that  are or would be classified as investments on a balance sheet (excluding any notes thereto) prepared on  the basis of GAAP; provided, however, that endorsements of negotiable instruments and documents in  the ordinary course of business will not be deemed to be an Investment. If the Issuer or any Restricted  Subsidiary issues,  sells  or otherwise  disposes 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  Issuer or any Restricted  Subsidiary in such Person remaining after giving effect  thereto will be deemed 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).        For purposes of Section 4.05:        (1)   “Investment” will include the portion (proportionate to the Issuer’s equity interest 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 Restricted             Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a             redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer will be deemed             to  continue  to  have  a  permanent “Investment” in  an  Unrestricted  Subsidiary  in  an             amount (if positive) equal to (a) the Issuer’s “Investment” in such Subsidiary at the time             of such redesignation less (b) the portion (proportionate to the Issuer’s equity interest             in such Subsidiary) of the fair market value of the net assets (as conclusively determined             by an Officer or the Board of Directors of the Issuer in good faith) of such Subsidiary             at the time that such Subsidiary is so re-designated a Restricted Subsidiary; and        (2)   any property transferred to or from an Unrestricted Subsidiary will be valued at its fair             market value at the time of such transfer (or if earlier at the time of entering into an             agreement to sell such property), in each case as determined in good faith by an Officer             or the Board of Directors of the Issuer.                                        23  EU-DOCS\26039728.6 





 






        The  amount  of  any  Investment  outstanding  at  any  time  shall  be  the  original  cost  of  such  Investment, reduced (at the Issuer’s option) by any dividend, distribution, interest payment, return of  capital, repayment or other amount or value received in respect of such Investment.        “Investment Grade Securities” means:        (1)   securities issued or directly and fully Guaranteed or insured by the United States or             Canadian  government  or  any  agency  or  instrumentality  thereof  (other  than  Cash             Equivalents);        (2)   securities issued or directly and fully guaranteed or insured by the United Kingdom, a             member  state  of  the  European  Union,  Switzerland,  Norway  or  any  agency  or             instrumentality thereof (other than Cash Equivalents);        (3)   debt securities or debt instruments with a rating of “BBB-” or higher from S&P, “Baa3”             or higher by Moody’s, “BBB-” or higher from Fitch or the equivalent of such rating by             such rating  organization  or,  if  no rating  of Moody’s, S&P or  Fitch then  exists,  the             equivalent  of  such  rating  by  any  other  Nationally  Recognized  Statistical  Ratings             Organization, but excluding any debt securities or instruments  constituting loans  or             advances among the Issuer and its Subsidiaries; and        (4)   investments in any fund that invests exclusively in investments of the type described in             clauses (1), (2) and (3) above which fund may also hold cash and Cash Equivalents             pending investment or distribution.        “Investment Grade Status” shall occur when the Notes receive any two of the following:        (1)   a rating of “BBB-” or higher from S&P;         (2)   a rating of “Baa3” or higher from Moody’s; or        (3)   a rating of “BBB–“ or higher from Fitch,   or the equivalent of such rating by either such rating organization or, if no rating of Moody’s, S&P or  Fitch then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings  Organization.        “Investor” means the ultimate controlling shareholder of Next Alt S.à r.l. on the Issue Date.        “Investor Affiliate” means (i) the Investor or any of his immediate family members, and any  such  persons’ respective  Affiliates  and  direct  and  indirect  Subsidiaries,  (ii) any  sponsor,  limited  partnerships or entities managed or controlled by the Investor or any of his immediate family, or any of  such persons’ respective Affiliates and direct or indirect Subsidiaries, (iii) any trust of the Investor or  any  of  his  immediate  family,  or  any  of  such  persons’ respective  Affiliates  and direct  or  indirect  Subsidiaries or any trust in respect of which any such persons is a trustee, (iv) any partnership of which  the Investor or any of his immediate family, or any of such persons’ respective Affiliates or direct or  indirect Subsidiaries is a partner that is managed or controlled by the Investor, any of his immediate  family or any of such persons’ respective Affiliates or direct or indirect Subsidiaries, and (v) any trust,  fund or other entity which is managed by, or is under the control of, the Investor or any of his immediate  family, or any of such persons’ respective Affiliates or direct or indirect Subsidiaries, but excluding the  Issuer or any of its Subsidiaries.        “IPO Entity” means the Parent Guarantor or any Parent (or any Affiliate or successor of any  such Person) provided that the IPO Entity shall be an entity which will issue shares, or whose shares  are to be sold, pursuant to a Public Offering.                                        24  EU-DOCS\26039728.6 





 






        “Issue Date” means October 2, 2019.        “Issue Date Unrestricted Subsidiary” means, in the event that all of the Capital Stock of 1334  York LLC is not transferred to an Affiliate of the Issuer that is not a member of the Group on the  Completion Date, 1334 York LLC.        “Issuer” means,  prior  to  the  Completion  Date,  BidFair  MergeRight  Inc.,  and  after  the  Completion Date, Sotheby’s.        “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind  (including any conditional sale or other title retention agreement or lease in the nature thereof).        “Limited  Condition  Transaction” shall  mean  (i)  any  acquisition  of  any  assets,  business  or  Person, other investment or similar transaction (whether by merger, amalgamation, consolidation or  other business combination or the acquisition of Capital Stock or otherwise) permitted hereunder by  one or more of the Issuer and its Restricted Subsidiaries whose consummation is not conditioned on the  availability  of,  or  on  obtaining,  third  party  financing,  (ii)  any  redemption,  repurchase,  defeasance,  satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance of such  redemption, repurchase, defeasance, satisfaction and discharge or repayment and (iii) any Restricted  Payment requiring irrevocable notice in advance thereof.        “Limited  Recourse” means  a  letter  of  credit,  revolving  loan  commitment,  cash  collateral  account, guarantee or other credit enhancement issued by the Issuer or any of its Restricted Subsidiaries  (other than a Receivables Entity) in connection with the incurrence of Indebtedness by the Issuer or a  Receivables Entity under a Qualified Receivables Financing; provided that, the aggregate amount of  such letter of credit reimbursement obligations and the aggregate available amount of such revolving  loan commitments, cash collateral accounts, guarantees or other such credit enhancements of the Issuer  and its Restricted Subsidiaries (other than a Receivables Entity) shall not exceed 25% of the principal  amount of such Indebtedness at any time.        “London Properties” means the properties in London located at: (i) 3-5 St. George Street, (ii)  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 offices of our U.K.  operations.        “Longstop Date” means December 13, 2019.        “Management Advances” means loans or advances made to, or Guarantees with respect to loans  or advances  made  to, directors,  officers, employees  or consultants of any Parent, the  Issuer or any  Restricted Subsidiary:        (1)   (a) in  respect  of  travel,  entertainment  or  moving  related  expenses  Incurred  in  the             ordinary course of business or (b) for purposes of funding any such Person’s purchase             of Capital Stock or Subordinated Shareholder Funding (or similar obligations) of the             Issuer, 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             (with  unused  amounts  in  any  calendar  year  being  carried  over  to  the  succeeding             calendar years; provided that the aggregate Management Advances made under this             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 Issuer;        (2)   in  respect  of  moving  related  expenses  Incurred  in  connection  with  any  closing  or             consolidation of any facility or office; or                                        25  EU-DOCS\26039728.6 





 






        (3)   (in the case of this clause (3)) not exceeding $15 million in the aggregate outstanding             at any time.        “Management Investors” means the current or former officers, directors, employees and other  members  of  the  management  of  or  consultants  to  any  Parent,  the  Issuer  or  any  of  their  respective  Subsidiaries or spouses, family members or relatives thereof, or any trust, partnership or other entity  for the benefit of or the beneficial owner of which (directly or indirectly) is any of the foregoing, or any  of their heirs, executors, successors and legal representatives, who at any date beneficially own or have  the right to acquire, directly or indirectly, Capital Stock of the Issuer, any Restricted Subsidiary or any  Parent.        “Market  Capitalization” means  an  amount  equal  to  (i)  the  total  number  of  issued  and  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 or common equity  interests multiplied by (ii) the arithmetic mean of the closing prices per share of such Capital Stock for  the 30 consecutive trading days immediately preceding the date of declaration of such dividends or  purchase, repurchase or other acquisition or retirement of common stock or common equity interests.        “Material  Subsidiary” shall  mean  each  Restricted  Subsidiary  other  than  an  Immaterial  Subsidiary.        “Moody’s” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a  Nationally Recognized Statistical Rating Organization.        “Nationally Recognized Statistical Rating Organization” shall have the same meaning as used  in Section 3(a)(62) of the Exchange Act.        “Net Available Cash” from an Asset Disposition means cash payments received (including any  cash  payments  received  by way of deferred  payment of principal pursuant to a note or installment  receivable or otherwise and net proceeds from the sale or other disposition of any securities received as  consideration, but only as and when received, but excluding any other 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 Disposition or received in any other non-cash  form) therefrom, in each case net of:        (1)   all  legal,  accounting,  investment  banking,  title  and  recording  tax  expenses,             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 tax             credits or deductions and any Tax Sharing Agreements), as a consequence of such Asset             Disposition;        (2)   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 which             must by its terms, or in order to obtain a necessary consent to such Asset Disposition,             or by applicable law, be repaid out of the proceeds from such Asset Disposition;        (3)   all distributions and other payments required to be made to minority interest holders             (other than any Parent, the Issuer or any of their respective Subsidiaries) in Subsidiaries             or joint ventures as a result of such Asset Disposition; and        (4)   the deduction of appropriate amounts required to be provided by the seller as a reserve,             on the basis of GAAP, against (a) any liabilities associated with the assets disposed in             such Asset Disposition and retained by the Issuer or any Restricted Subsidiary after             such Asset Disposition; or (b) any purchase price adjustment or earn-out in connection             with such Asset Disposition.                                        26  EU-DOCS\26039728.6 





 






        “Net  Cash  Proceeds” means,  with respect  to  any  issuance  or  sale  of  Capital  Stock  or  Subordinated Shareholder Funding, any Incurrence of any Indebtedness or any sale of any asset, the  cash  proceeds  of  such  issuance  or  sale,  net  of  attorneys’ fees,  accountants’ fees,  underwriters’ or  placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees  and charges actually Incurred in connection with such 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).        “New Credit Facilities” means collectively to the New Revolving Credit Facility and the New  Term Loan Facility.        “New Credit Facilities Agreement” means the new credit facilities agreement to be entered into  on or about the Issue Date among, inter alios, the Initial Issuer, certain lenders party thereto and BNP  Paribas as administrative agent and Deutsche Bank Trust Company Americas as the collateral agent.         “New  Credit  Facilities  Security  Documents”  means  the  security  agreements,  pledge  agreements, collateral assignments, and any other instrument and document executed and delivered  pursuant to the New Credit Facilities or otherwise or any of the foregoing, as the same may be amended,  supplemented or otherwise modified from time to time, creating the security interests in the collateral  securing the New Credit Facilities as contemplated by the New Credit Facilities.        “New Revolving Credit Facility” means the revolving credit facility to be entered into under the  New Credit Facilities Agreement.        “New Term Loan Facility” means the senior secured term loan facility to be entered into under  the New Credit Facilities Agreement.        “Non-Guarantor Debt Cap” means an amount of Indebtedness Incurred and Disqualified Stock  or Preferred Stock equal to $25 million.        “Non-U.S.  Guarantor”  means  any  Guarantor  that  is  not  organized  in  the  United  States  of  America.         “Note Guarantee” means the Guarantee by each Guarantor of the Issuer’s obligations under  this Indenture and the Notes, executed pursuant to the provisions of this Indenture.        “Notes Custodian” means the custodian with respect to a Global Note, as appointed by DTC,  or any successor person thereto.        “Notes Collateral” refers collectively to (a) the Initial Notes Collateral and (b) any other rights,  property or assets that secure the Notes and/or the Notes Guarantees from time to time until the security  interests therein are released in accordance with this Indenture, the Intercreditor Agreement and the  Notes Security Documents.        “Notes Collateral Agent” means Deutsche Bank Trust Company Americas, acting as collateral  agent pursuant to this Indenture, the Intercreditor Agreement or such successor Notes Collateral Agent  or  any  delegate  thereof  as may  be  appointed  thereunder  or  any  such  collateral  agent,  delegate  or  successor thereof pursuant to an Additional Intercreditor Agreement.        “Notes Documents” means the Notes (including Additional Notes), this Indenture, the Notes  Security Documents, the Intercreditor Agreement and any Additional Intercreditor Agreements.        “Notes  Secured  Parties”  means  the  “Secured  Parties”  as  defined  in  the  Notes  Security  Documents.                                        27  EU-DOCS\26039728.6 





 






        “Notes  Security  Documents”  means  the  security  agreements,  pledge  agreements,  collateral  assignments, and any other instrument and document executed and delivered pursuant to this Indenture  or otherwise or any of the foregoing, as the same may be amended, supplemented or otherwise modified  from  time  to  time,  creating  the  security  interests  in  the  Notes  Collateral  as  contemplated  by  this  Indenture.        “Obligations” means, with respect to any indebtedness, all obligations for principal, premium,  interest, penalties, fees, indemnifications, reimbursements and other amounts payable pursuant to the  documentation governing such indebtedness.        “Offering Memorandum” means the offering memorandum in relation to the Initial Notes, dated  September 23, 2019.        “Officer” means, with respect to any Person, (1) any member of the Board of Directors, the  Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, any  Vice President, the Treasurer or the Secretary (a) of such Person or (b) if such Person is owned or  managed by a single entity, of such entity, or (2) any other individual designated as an “Officer” for the  purposes of this Indenture by the Board of Directors of such Person.        “Officer’s Certificate” means, with respect to any Person, a certificate signed by one Officer of  such Person.        “Opinion of Counsel” means a written opinion from legal counsel reasonably satisfactory to the  Trustee, which opinion may contain customary assumptions and qualifications. The counsel may be an  employee of or counsel to any Parent, the Issuer or any of their Subsidiaries.        “Parent” means any Person of which the Issuer at any time is or becomes a Subsidiary and any  holding companies established by any Permitted Holder for purposes of holding its investment in any  parent of the Issuer.        “Parent Expenses” means:        (1)   costs  (including  all  professional  fees and  expenses)  Incurred  by  any  Parent  in             connection with reporting obligations under or otherwise Incurred in connection with             compliance with applicable laws, rules or regulations of any governmental, regulatory             or self-regulatory body or stock exchange, this Indenture or any other agreement or             instrument relating to Indebtedness of a Parent (excluding principal and interest under             any such agreement or instrument relating to obligations of the Parent), the Issuer or             any Restricted Subsidiary, including in respect of any reports filed with respect to the             Securities  Act,  Exchange  Act  or  the  respective  rules  and  regulations  promulgated             thereunder;        (2)   customary  indemnification  obligations  of  any  Parent  owing  to  directors,  officers,             employees  or  other  Persons  under its  charter  or  by-laws  or  pursuant  to  written             agreements with any such Person to the extent relating to a Parent, the Issuer or their             respective Subsidiaries;        (3)   obligations  of  any  Parent  in  respect  of  director  and  officer  insurance  (including             premiums  therefor)  to  the  extent  relating  to  a  Parent,  the  Issuer  or  their  respective             Subsidiaries and  reasonable  fees  and  reimbursement of  expenses  to,  and  customary             indemnities  and  employee  benefit  and  pension  expenses  provided  on  behalf  of,             directors, officers, consultants or employees of the Issuer, any Restricted Subsidiary or             any Parent (whether directly or indirectly and including through any Person owned or             controlled by any of such directors, officers or employees);        (4)   fees and expenses payable by any Parent in connection with the Transactions;                                       28  EU-DOCS\26039728.6 





 






        (5)   general corporate overhead expenses, including (a) professional fees and expenses and             other operational expenses of any Parent related to the ownership or operation of the             business of the Issuer or any of the Restricted Subsidiaries including acquisitions or             dispositions  by  the  Issuer  or  a  Subsidiary  permitted  hereunder  (whether  or  not             successful), in each case, to the extent such costs, obligations and/or expenses are not             paid by another Subsidiary of such Parent or (b) costs and expenses with respect to any             litigation  or  other dispute  relating  to  the  Transactions  or the  ownership, directly  or             indirectly, by any Parent;        (6)   any fees and expenses required to maintain any Parent’s corporate existence and to             provide for other ordinary course operating costs, including customary salary, bonus             and other benefits payable to officers and employees of such Parent;        (7)   to  reimburse  out-of-pocket  expenses  of  the  Board  of  Directors  of  any  Parent  and             payment of all reasonable out-of-pocket expenses Incurred by any Permitted Holder in             connection with its direct or indirect investment in the Issuer and its Subsidiaries;        (8)   other fees, expenses and costs relating directly or indirectly to activities of the Issuer             and its Subsidiaries or any Parent or any other Person established for purposes of or in             connection with the Transactions or which holds directly or indirectly any Capital Stock             or  Subordinated  Shareholder  Funding  of  the  Issuer,  in  an  amount  not  to  exceed             $5 million in any fiscal year;        (9)   any Public Offering Expenses;        (10)  payments pursuant to any Tax Sharing Agreement in the ordinary course of business or             as  a  result  of  the  formation  and  maintenance  of  any  consolidated  group  for  tax  or             accounting purposes in the ordinary course of business; and        (11)  franchise, excise and similar taxes and other fees, taxes and expenses, in each case,             required for the Issuer to maintain its operations and paid by the Parent.        “Parent Guarantor” means BidFair Holdings Inc.        “Pari Passu Indebtedness” means (1) with respect to the Issuer, any Indebtedness that ranks  pari passu in right of payment to the Notes; and (2) with respect to the Subsidiary Guarantors, any  Indebtedness that ranks pari passu in right of payment to such Subsidiary Guarantor’s Note Guarantee.        “Participant” means a Person who has an account with DTC.        “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is  subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.        “Permitted Asset Swap” means the concurrent purchase and sale or exchange of assets used or  useful in a Similar Business or a combination of such assets and cash, Cash Equivalents or Temporary  Cash Investments between the Issuer or any of the Restricted Subsidiaries and another Person; provided  that any cash or Cash Equivalents received in excess of the value of any cash or Cash Equivalents sold  or exchanged must be applied in accordance with Section 4.08.        “Permitted Collateral Liens” means:        (1)   Liens on the Notes Collateral that are described in one or more of clauses (2), (3), (4),             (5), (6), (8), (9), (11), (12), (13), (18), (20), (23), (24), (27), (28) (but in the case of             clause (28), excluding any Additional Notes) of the definition of “Permitted Liens” and             (37); and                                        29  EU-DOCS\26039728.6 





 






        (2)   Liens on the Notes Collateral to secure (a) Indebtedness that is permitted to be Incurred             under Section 4.04(a) so long as on the date of Incurrence of  such Indebtedness and             after giving effect thereto on a pro forma basis (including a pro forma application of the             net proceeds therefrom) as if such Indebtedness had been Incurred at the beginning of             the relevant period, the Consolidated Net Senior Secured Leverage Ratio is no greater             than 4.50 to 1.0, (b) Indebtedness that is permitted to be Incurred under clauses (1),             (2)(a) (in the case of (2)(a), to the extent such Guarantee is in respect of Indebtedness             otherwise permitted to be secured on the Notes Collateral and specified in this definition             of Permitted Collateral Liens), (4)(b) (in the case of (4)(b), only in respect of Existing             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 Indebtedness pursuant to such             clause (5) and after giving effect thereto on a pro forma basis (including a pro forma             application of the net proceeds therefrom) as if such 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 1.0 or (y) the Consolidated Net Senior Secured             Leverage Ratio would not be greater than it was immediately prior to giving effect to             such  acquisition  or  other  transaction),  (7)(a)  (to  the  extent  relating  to  Currency             Agreements or Interest Rate Agreements related to 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 on a pro forma basis (including a pro             forma application  of the net proceeds therefrom) as if such Indebtedness had been             Incurred  at  the  beginning  of  the  relevant  period,  together  with  any  Incurrence  of             Indebtedness pursuant to Section 4.04(b)(5) on the date on which Indebtedness pursuant             to clause (14) is Incurred, (x) the Consolidated Net Senior Secured Leverage Ratio is             no greater than 4.50 to 1.0 and (y) the Issuer could Incur at least $1.00 of additional             Indebtedness under Section 4.04(a) and Section 4.04(b)(16) and (c) any Refinancing             Indebtedness in respect of Indebtedness referred to in the foregoing clause (a) or (b),             provided,  however,  that  (i)  such  Lien  shall  rank  pari  passu  or  junior  to  the  Liens             securing the Notes and the Note Guarantees (including by virtue of the Intercreditor             Agreement or an Additional Intercreditor Agreement); (ii) in each case, all property and             assets (including, without limitation, the Notes Collateral) securing such Indebtedness             also secure the Notes or the Note Guarantees on a senior or pari passu basis (including             by virtue of the Intercreditor Agreement or an Additional Intercreditor Agreement but             no such Indebtedness shall have priority to the Notes over amounts received from the             sale of the Notes Collateral pursuant to an enforcement sale or other distressed disposal             of such Notes Collateral); and (iii) each of the parties thereto will have entered into the             Intercreditor Agreement or an Additional Intercreditor Agreement.        “Permitted Holders” means, collectively, (1) the Investor, (2) Investor Affiliates and, (3) any  Person who is acting as an underwriter in connection with a public or private offering of Capital Stock  of any Parent or the Issuer, acting in such capacity. Any person or group whose acquisition of beneficial  ownership constitutes a Change of Control in respect of which a Change of Control Offer is made in  accordance with the requirements of this Indenture will thereafter, together with its Affiliates, constitute  an additional Permitted Holder.        “Permitted Investment” means (in each case, by the Issuer or any of the Restricted Subsidiaries):        (1)   Investments in (a) a Restricted Subsidiary (including the Capital Stock of a Restricted             Subsidiary) or the Issuer or (b) 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;        (2)   Investments in another Person if such Person is engaged in any Similar Business and             as a result of such Investment such other Person is merged, consolidated or otherwise                                        30  EU-DOCS\26039728.6 





 






              combined with or into, or transfers or conveys all or substantially all its assets to, the             Issuer or a Restricted Subsidiary;        (3)   Investments  in cash, Cash Equivalents, Temporary Cash Investments  or Investment             Grade Securities;        (4)   Investments in receivables owing to the Issuer or any Restricted Subsidiary created or             acquired in the ordinary course of business and payable or dischargeable in accordance             with customary trade terms; provided, however, that such trade terms may include such             concessionary  trade  terms  as  the  Issuer  or  any  such  Restricted  Subsidiary  deems             reasonable under the circumstances;        (5)   Investments in payroll, travel and similar advances to cover matters that are expected             at  the  time  of  such  advances  ultimately  to  be  treated  as  expenses  for  accounting             purposes and that are made in the ordinary course of business;        (6)   Management Advances;        (7)   Investments in Capital Stock, obligations or securities received in settlement of debts             created in the ordinary course of business and owing to the Issuer or any Restricted             Subsidiary (including obligations of trade creditors and customers), or as a result of             foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments or             pursuant  to  any  plan  of  reorganization  or  similar  arrangement  including  upon  the             bankruptcy or insolvency of a debtor or in compromise or resolution of any litigation,             arbitration or other dispute;        (8)   Investments made as a result of the receipt of non-cash consideration from a sale or             other disposition of property or assets, including an Asset Disposition, in each case, that             was made in compliance with Section 4.08 and other Investments resulting from the             disposition of assets in transactions excluded from the definition of “Asset Disposition”             pursuant to the exclusions from such definition;        (9)   Investments  in  existence  on,  or  made  pursuant  to  legally  binding  commitments  in             existence on, the Issue Date and any modification, replacement, renewal or extension             thereof; provided that the amount of any such Investment may not be increased except             (a) as required by the terms of such Investment as in existence on the Issue Date or             (b) as otherwise permitted by this Indenture;        (10)  Currency  Agreements,  Interest  Rate  Agreements,  Commodity  Hedging  Agreements             and  related  Hedging  Obligations,  which  transactions  or  obligations  are Incurred             pursuant to Section 4.04(b)(7);        (11)  pledges or deposits with respect to leases or utilities provided to third parties in the             ordinary course of business or Liens otherwise described in the definition of “Permitted             Liens” or made in connection with Liens permitted under Section 4.06;        (12)  any  Investment  to  the  extent  made  using  Capital  Stock  of  the  Issuer  (other  than             Disqualified  Stock  or  Designated  Preference  Shares),  Subordinated  Shareholder             Funding or Capital Stock of any Parent as consideration;        (13)  any transaction to the extent constituting an Investment that is permitted and made in             accordance with Section 4.09(b) (except those described in clauses (1), (3), (6), (8),             (9) and (12) of Section 4.09(b));        (14)  Guarantees not prohibited by Section 4.04 and (other than with respect to Indebtedness)             guarantees, keepwells and similar arrangements in the ordinary course of business, in                                       31  EU-DOCS\26039728.6 





 






              each case, other than Guarantees of the obligations of the SFS Business in connection             with securitization of the loans described in clause (20) below;        (15)  Investments in the Notes, any Additional Notes, the Existing Notes, any term loans             Incurred under the New Term Loan Facility or any Pari Passu Indebtedness of the Issuer             or a Subsidiary Guarantor;        (16)  (a) Investments acquired after the Issue Date as a result of the acquisition by the Issuer             or  any  Restricted  Subsidiary  of  another  Person,  including  by  way  of  a  merger,             amalgamation  or  consolidation  with  or  into  the  Issuer  or  any  of  its  Restricted             Subsidiaries in a transaction that is not prohibited by Section 5.01 or Section 5.02 to             the extent that such Investments were not made in contemplation of such acquisition,             merger, amalgamation or consolidation and (b) Investments of a Restricted Subsidiary             existing on the date such Person becomes a Restricted Subsidiary to the extent that such             Investments were not made in contemplation of such Person becoming a Restricted             Subsidiary;        (17)  Investments, taken together with all other Investments made pursuant to this clause (17)             and at any time outstanding, in an aggregate amount at the time of such Investment not             to exceed the greater of 35% of Pro Forma EBITDA for the most recently ended four             full fiscal quarters for which internal financial statements of the Issuer 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 the fair market value of each             Investment being measured in accordance with Section 4.05(c); provided, that, if an             Investment is made pursuant to this clause in a Person that is not a Restricted Subsidiary             and such Person subsequently becomes a Restricted Subsidiary, such Investment shall             thereafter be deemed to have been made pursuant to clause (1) or (2) of the definition             of “Permitted Investments” and not this clause;        (18)  Investments in (a) joint ventures and similar entities and (b) Unrestricted Subsidiaries             having an aggregate fair market value, when taken together with all other Investments             made pursuant to this clause (18) 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 Issuer are available             immediately preceding the date of determination at the time of such Investment 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 the fair market             value of each Investment being measured in accordance with Section 4.05(c));        (19)  Investments by the Issuer or a Restricted Subsidiary in a Receivables Entity or any             Investment by a Receivables Entity in any other Person, in each case, in connection             with a Qualified Receivables Financing, provided, however, that any Investment in any             such Person is in the form of a Purchase Money Note, or any equity interest or interests             in Receivables and related assets generated by the Issuer or a Restricted Subsidiary and             transferred to any Person in connection with a Qualified Receivables Financing or any             such Person owning such Receivables;        (20)  Guarantees by the Issuer and the Subsidiary Guarantors of the obligations of the SFS             Business in connection with securitization of the loans originated by the SFS Business             subsequent to the Completion Date in an amount not to exceed at any time 15% of the             aggregate  principal  amount  of  such  securitized  loans,  provided  that  (i)  such             securitization is on market terms and (ii) such Guarantees (including any fees payable             to the Issuer and any Subsidiary Guarantor in connection therewith) are on terms not             materially less favorable to the Issuer or a Restricted Subsidiary than those that could                                       32  EU-DOCS\26039728.6 





 






              be obtained in a comparable transaction in arm’s-length dealings with a Person who is             not an Affiliate;        (21)  Investments made to effect, or otherwise made in connection with, the Transactions to             the extent described in the Offering Memorandum or any non-cash Investments made             in connection with Permitted Reorganizations; and        (22)  Investments  by  the  Issuer or  a  Restricted  Subsidiary  in  an Issue  Date Unrestricted             Subsidiary in existence as of the Issue Date.        “Permitted Licensing Activities” means:        (1)   non-exclusive licensing of the Target’s brand and other intellectual property conducted             in the ordinary course of business;        (2)   the  licensing  of  the  Sotheby’s  International  Realty  trademark  and  certain  related             trademarks pursuant to the Realogy License Agreement entered between the Target and             Realogy Corporation (formerly known as Cendant Corporation) on February 17, 2004;             and        (3)   the licensing of the Target’s name in connection with the Target’s art auction business             in Australia and art education services in the United States and the United Kingdom.        “Permitted Liens” means, with respect to any Person:        (1)   Liens on assets or property of a Restricted Subsidiary that is not a Subsidiary Guarantor             securing Indebtedness of such Restricted Subsidiary or another Restricted Subsidiary             that is not a Subsidiary Guarantor;        (2)   pledges,  deposits  or  Liens  under  workmen’s  compensation  laws,  unemployment             insurance  laws,  social  security  laws or  similar  legislation,  or  insurance  related             obligations (including pledges or deposits securing liability to insurance carriers under             insurance or self-insurance arrangements and including Liens on insurance policies and             proceeds  thereof,  or  other  deposits,  to  secure  insurance  premium  financings),  or  in             connection  with  bids,  tenders,  completion  guarantees,  contracts  (other  than  for             borrowed  money)  or  leases,  or  to  secure  utilities,  licenses,  public  or  statutory             obligations, or to secure surety, indemnity, judgment, appeal or performance bonds,             guarantees of government contracts (or other similar bonds, instruments or obligations),             or as security for contested taxes or import or customs duties or for the payment of rent,             or  other  obligations  of  like  nature, in  each  case  Incurred  in  the  ordinary  course  of             business;        (3)   Liens imposed by law, including carriers’, warehousemen’s, mechanics’, landlords’,             materialmen’s  and  repairmen’s  or  other  like  Liens,  in  each  case  for  sums  not  yet             overdue for a period of more than 60 days or that are bonded or being contested in good             faith by appropriate proceedings;        (4)   Liens for taxes, assessments or other governmental charges not yet subject to penalties             for non-payment or which are being contested in good faith by appropriate proceedings;             provided that  appropriate  reserves  required  pursuant  to  GAAP  have  been  made  in             respect thereof;        (5)   (a) Liens in favor of issuers of surety, performance or other bonds, guarantees or letters             of  credit  or  bankers’ acceptances  (not issued  to  support  Indebtedness  for  borrowed             money)  issued  pursuant  to  the  request  of  and  for  the  account  of  the  Issuer  or  any                                        33  EU-DOCS\26039728.6 





 






              Restricted Subsidiary in the ordinary course of its business and (b) Liens in connection             with cash management programs established in the ordinary course of business;        (6)   encumbrances, ground leases, easements (including reciprocal easement agreements),             survey exceptions, or reservations of, or rights of others for, licenses, rights of way,             sewers,  electric  lines,  telegraph  and  telephone  lines  and  other  similar  purposes,  or             zoning, building codes or other restrictions (including minor defects or irregularities in             title and similar encumbrances) as to the use of real properties or Liens incidental to the             conduct of the business of the Issuer and the Restricted Subsidiaries or to the ownership             of its properties which do not in the aggregate materially adversely affect the value of             said properties or materially impair their use in the operation of the business of the             Issuer and the Restricted Subsidiaries;        (7)   Liens on assets or property of the Issuer or any Restricted Subsidiary securing Hedging             Obligations permitted under this Indenture;        (8)   leases,  licenses,  subleases  and  sublicenses  of  assets  (including  real  property  and             intellectual property rights), in each case entered into in the ordinary course of business;        (9)   Liens arising out of judgments, decrees, orders or awards not giving rise to an Event of             Default and notices of lis pendens and associated rights so long as any appropriate 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 period within             which such proceedings may be initiated has not expired;        (10)  Liens on assets or property of the Issuer or any Restricted Subsidiary (including Capital             Stock) for the purpose of securing Capitalized Lease Obligations or Purchase Money             Obligations, or securing the payment of all or a part of the purchase price of, or securing             other Indebtedness Incurred to finance or refinance the acquisition, improvement or             construction of, assets or property acquired or constructed in the ordinary course of             business; provided that (a) the aggregate principal amount of Indebtedness secured by             such  Liens  is  otherwise  permitted  to  be  Incurred  under  this  Indenture  (excluding             Indebtedness  Incurred  pursuant  to  Section 4.04(a))  and  (b) any  such  Lien  may  not             extend to any assets or property of the Issuer or any Restricted Subsidiary other than             assets or property acquired, improved, constructed or leased with the proceeds of such             Indebtedness and any improvements or accessions to such assets and property;        (11)  Liens arising by virtue of any statutory or common law provisions relating to banker’s             Liens, rights of set-off or similar rights and remedies as to deposit accounts or other             funds  maintained  with  a  depositary  or  financial  institution  (including,  without             limitation,  Liens  of  a  collection  bank  arising  under  Section 4-210  of  the             Uniform Commercial Code);        (12)  Liens arising from Uniform Commercial Code financing statement filings (or similar             filings in other applicable jurisdictions) regarding operating leases entered into by the             Issuer and the Restricted Subsidiaries in the ordinary course of business;        (13)  with respect to the Issuer and its Restricted Subsidiaries, Liens existing on or provided             for or required to be granted under written agreements existing on the Completion Date             after giving effect to the Transactions, the SFS Business Transfer and the Permitted             Sale and Leaseback Transactions;        (14)  Liens on property, other assets or shares of stock of a Person at the time such Person             becomes a Restricted Subsidiary (or at the time the Issuer or a Restricted Subsidiary             acquires such property, other assets or shares of stock, including any acquisition by             means of a merger, consolidation or other business combination transaction with or into                                       34  EU-DOCS\26039728.6 





 






              the Issuer or any Restricted Subsidiary); provided, however, that such Liens are not             created, Incurred or assumed in anticipation of or in connection with such other Person             becoming a Restricted Subsidiary (or such acquisition of such property, other assets or             stock); provided, further, that such Liens are limited to all or part of the same property,             other  assets  or  stock  (plus  improvements,  accession,  proceeds  or  dividends  or             distributions in connection with the original property, other assets or stock) that secured             (or, under the written arrangements under which such Liens arose, could secure) the             obligations to which such Liens relate;        (15)  Liens  on  assets  or  property  of  the  Issuer  or  any  Restricted  Subsidiary  securing             Indebtedness or other obligations of the Issuer or such Restricted Subsidiary owing to             the  Issuer  or  another  Restricted  Subsidiary,  or  Liens  in  favor  of  the  Issuer  or  any             Restricted Subsidiary;        (16)  Liens securing Refinancing Indebtedness Incurred to refinance Indebtedness that was             previously so secured, and permitted to be secured under this Indenture; provided that             any such Lien is limited to all or part of the same property or assets (plus improvements,             accessions, proceeds or dividends or distributions in respect thereof) that secured (or,             under the written arrangements under which the original Lien arose, could secure) the             Indebtedness being refinanced or is in respect of property that is or could be the security             for or subject to a Permitted Lien hereunder;        (17)  any interest or title of a lessor under any Capitalized Lease Obligation or operating             lease;        (18)  (a) mortgages, liens, security interest, restrictions, encumbrances or any other matters             of record that have been placed by any government, statutory or regulatory authority,             developer,  landlord  or  other  third  party  on  property  over  which  the  Issuer  or  any             Restricted Subsidiary has easement rights or on any leased property and subordination             or similar arrangements relating thereto and (b) any condemnation or eminent domain             proceedings affecting any real property;        (19)  any encumbrance or restriction (including put and call arrangements) with respect to             Capital Stock of, or assets owned by, any joint venture or similar arrangement pursuant             to any joint venture or similar agreement;        (20)  Liens  on  property  or  assets  under  construction  (and  related  rights)  in  favor  of  a             contractor or developer or arising from progress or partial payments by a third party             relating to such property or assets;        (21)  Liens  on  Receivables  Assets  Incurred  in  connection  with  a  Qualified  Receivables             Financing;        (22)  Liens on Escrowed Proceeds for the benefit of the related holders of debt securities             (including the Notes) or other Indebtedness (or the underwriters or arrangers thereof)             or on cash set aside at the time of the Incurrence of any Indebtedness or government             securities purchased with such cash, in either case to the extent such cash or government             securities  prefund  the  payment  of  interest  on such  Indebtedness  and  are  held in  an             escrow account or similar arrangement to be applied for such purpose;        (23)  bankers’ Liens, Liens on specific items of inventory or other goods (and the proceeds             thereof)  of  any  Person  securing  such  Person’s  obligations  in  respect  of  bankers’             acceptances  issued  or  created  in  the  ordinary  course  of  business  of  such  Person  to             facilitate the purchase, shipment or storage of such inventory or other goods and Liens             securing or arising by reason of any netting or set-off arrangement entered into in the             ordinary course of banking or other trading activities;                                       35  EU-DOCS\26039728.6 





 






        (24)  Liens  arising  out  of  conditional  sale,  title  retention,  hire  purchase,  consignment             (including Liens in favour of a consignor on a segregated deposit account established             for the benefit of such consignor and into which only proceeds of works of art consigned             by such consignor to the Issuer or any of its Subsidiaries for sale (including the Issuer’s             or  any  of  its  Subsidiaries’  commissions  on  such  sales)  are  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 related documents arising             or  created  in  the  ordinary  course  of  business  or  operations  as  Liens  only  for             Indebtedness  to  a  bank  or  financial  institution  directly  relating  to  the  goods  or             documents on or over which the pledge exists;        (25)  Permitted Collateral Liens;        (26)  Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that             secure Indebtedness of such Unrestricted Subsidiary;        (27)  any security granted over Cash Equivalents in connection with the disposal thereof to a             third party and Liens on cash, Cash Equivalents or other property arising in connection             with the defeasance, discharge or redemption of Indebtedness;        (28)  (a) Liens created for the benefit of or to secure, directly or indirectly, the Notes and the             Note Guarantees, (b) Liens pursuant to the Intercreditor Agreement and (c) Liens in             respect of property and assets securing Indebtedness if the recovery in respect of such             Liens is subject to loss-sharing or similar provisions as among the Holders of the Notes             and the creditors of such Indebtedness pursuant to the Intercreditor Agreement or an             Additional Intercreditor Agreement;        (29)  Liens created on any asset of the Issuer or a Restricted Subsidiary established to hold             assets  of  any  stock  option  plan  or  any  other  management  or  employee  benefit  or             incentive plan or unit trust of the Issuer or a Restricted Subsidiary securing any loan to             finance the acquisition of such assets;        (30)  Liens; provided that the maximum amount of Indebtedness secured in the aggregate at             any one time pursuant to this clause (30) does not exceed the greater of $45 million             and 20% of Pro Forma EBITDA for the most recently ended four full fiscal quarters for             which internal financial statements of the Issuer are available immediately preceding             the date of determination;        (31)  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;        (32)  Liens  for  the  purpose  of  perfecting  the  ownership  interests  of  a  purchaser  of             Receivables and related assets pursuant to any Qualified Receivables Financing;        (33)  Cash deposits or other Liens for the purpose of securing Limited Recourse;        (34)  Liens arising in connection with other sales of Receivables permitted hereunder without             recourse to the Issuer or any of its Restricted Subsidiaries;        (35)  Liens  encumbering  reasonable  customary  initial  deposits  and  margin  deposits  and             similar  Liens  attaching  to commodity  trading  accounts  or  other  brokerage  accounts             incurred in the ordinary course of business and not for speculative purposes;        (36)  Liens (a) on any cash earnest money deposits or cash advances made by the Issuer or             any of the Restricted Subsidiaries in connection with any letter of intent or purchase             agreement permitted under this Indenture, or (b) on other cash advances in favor of the                                       36  EU-DOCS\26039728.6 





 






              seller of any property to be acquired in an Investment or other acquisition permitted             hereunder  to  be applied  against  the  purchase  price  for  such  Investment  or  other             acquisition;        (37)  Liens or rights of set-off against credit balances of the Issuer or any of the Restricted             Subsidiaries with credit card issuers or credit card processors or amounts owing by such             credit card issuers or credit card processors to the Issuer or any Restricted Subsidiaries             in  the  ordinary  course  of  business  to  secure  the  obligations  of  the  Issuer  or  any             Restricted Subsidiary to the credit card issuers or credit card processors as a result of             fees and charges;        (38)  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 indenture;             and        (39)  Liens arising in connection with any Permitted Reorganization.        “Permitted  Reorganization” means  any  reorganizations  and  other  activities  related  to  tax  planning and tax reorganization, so long as, after giving effect thereto, the enforceability of the Note  Guarantees, taken as a whole, are not materially impaired.        “Permitted Sale and Leaseback Transactions” means the Real Estate Portfolio Transfer and the  lease transactions in respect of the York Property and the London Properties to be entered into among  the entity that owns the relevant property, as lessor, and the Issuer and/or one or more of its Restricted  Subsidiaries, as lessee; provided that:        (1)   each of the lease transactions relating to the London Properties and the York Property             is, in the reasonable determination of the Issuer, on terms not materially less favorable             to  the  Issuer  or  a  Restricted  Subsidiary  than  those  that  could  be  obtained  in  a             comparable transaction in arm’s-length dealings with a Person who is not an Affiliate;        (2)   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 the             manner  such  real  estate  is  used  by  the  Issuer  and  the  Restricted  Subsidiaries             immediately prior to the Completion Date; and        (3)   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 Stated Maturity of the Notes.        “Person” means any individual, corporation, partnership, joint venture, association, joint-stock  company, trust, unincorporated organization, limited liability company, government or any agency or  political subdivision thereof or any other entity.        “Preferred Stock”, as applied to the Capital Stock of any Person, means Capital Stock of any  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 such Person, over  shares of Capital Stock of any other class of such Person.        “Private Placement Legend” means the legend set forth in Section 2.06(g)(1) to be placed on  each Note certificate evidencing the Global Notes and the Definitive Registered Notes (and all Notes  issued  in  exchange  therefor  or  in  substitution  thereof)  except  where  otherwise  permitted  by  the  provisions of this Indenture.        “Pro Forma EBITDA” means, for any period, the Consolidated EBITDA of the Issuer and the  Restricted  Subsidiaries, provided that for the  purposes of calculating Pro  Forma  EBITDA for such  period, if, as of such date of determination:                                       37  EU-DOCS\26039728.6 





 






        (1)   since the beginning of such period the Issuer 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  disposition,  a “Sale”)  or  if  the             transaction giving rise to the need to 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             “discontinued operations” in accordance with 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;        (2)   since the beginning of such period, a Parent, the Issuer 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 designation, a “Purchase”), including any             such Purchase occurring in connection with a transaction causing a calculation to be             made hereunder, Pro Forma EBITDA for such period will be calculated after giving             pro forma effect thereto as if such Purchase occurred on the first day of such period;             and        (3)   since the beginning of such period, any Person (that became a Restricted Subsidiary or             was merged or otherwise combined with or into the Issuer or any Restricted Subsidiary             since the beginning of such period) will have made any Sale or any Purchase that would             have required an adjustment pursuant to clause (1) or (2) above if made by the Issuer             or a Restricted Subsidiary since the beginning of such period, Pro Forma EBITDA for             such period will be calculated after giving pro forma effect thereto as if such Sale or             Purchase occurred on the first day of such period.        For the purposes of this definition and the definitions of Consolidated EBITDA, Consolidated  Income Taxes, Consolidated Interest Expense, Consolidated Net Income, Consolidated Net Leverage  Ratio and Consolidated  Net  Senior  Secured  Leverage  Ratio or  any  other  purpose  hereunder  (a) whenever pro  forma effect  is  to  be  given  to  any  transaction  (including,  without  limitation,  transactions listed in clauses (1) through (3) of this definition) or calculation hereunder or such other  definitions, the pro forma calculations will be as determined in good faith by a responsible financial or  accounting officer of the Issuer or an Officer of the Issuer (including in respect of anticipated expense  and cost reductions and synergies (other than revenue 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 Forma EBITDA is being determined and as though such cost savings, operating expense  reductions  and  synergies  were  realized  during  the  entirety  of  such  period),  (b) in  determining  the  amount of Indebtedness outstanding on any date of determination, pro forma effect shall be given to  any  Incurrence,  repayment,  repurchase,  defeasance  or  other  acquisition,  retirement  or  discharge  of  Indebtedness as if such 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  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).        “Public Debt” means any Indebtedness consisting of bonds, debentures, notes or other 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 Rule 144A or                                       38  EU-DOCS\26039728.6 





 






   Regulation S under the Securities Act, whether or not it includes registration rights entitling the holders  of such debt securities to registration thereof with the SEC for public resale.        “Public  Offering” means  any  offering,  including  the  Initial  Public  Offering,  of  shares  of  common stock or other common equity interests that are listed on an exchange or publicly offered  (which shall include an offering pursuant to Rule 144A and/or Regulation S under the Securities Act to  professional market investors or similar persons).        “Public Offering Expenses” means expenses Incurred by any Parent in connection with any  Public Offering or any offering of Public Debt (whether or not successful):        (1)   where the net proceeds of such offering are intended to be received by or contributed             or loaned to the Issuer or a Restricted Subsidiary;        (2)   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        (3)   otherwise on an interim basis prior to completion of such offering so long as any Parent             shall cause  the  amount  of  such  expenses  to  be  repaid  to  the  Issuer  or  the  relevant             Restricted Subsidiary out of the proceeds of such offering promptly if completed, in             each case, to the extent such expenses are not paid by another Subsidiary of such Parent.        “Purchase” has the meaning ascribed to it in the definition of “Pro Forma EBITDA.”        “Purchase  Money  Note” means  a  promissory  note  of  a  Receivables Entity evidencing  the  deferred  purchase  price  of  Receivables  (and  related  assets)  and/or  a  line  of  credit,  which may  be  irrevocable, from the Issuer or any Restricted Subsidiary in connection with a Qualified Receivables  Financing with a  Receivables Entity, which  deferred purchase  price or line is  repayable from cash  available to a Receivables Entity, other than amounts required to be established as reserves pursuant to  agreements, amounts paid to investors in respect of interest, principal and other amounts owing to such  investors and amounts owing to such investors and amounts paid in connection with the purchase of  newly generated Receivables.        “Purchase Money Obligations” means any Indebtedness Incurred to finance or refinance the  acquisition, leasing, construction or improvement of property (real or personal) or assets (including  Capital Stock), and whether acquired through the direct acquisition of such property or assets or the  acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.        “QIB” means a “qualified institutional buyer” as defined in Rule 144A.        “Qualified Receivables Financing” means any Receivables Financing of a Receivables Entity  that meets the following conditions: (1) an Officer or the Board of Directors of the Issuer shall have  determined  in  good  faith  that  such  Qualified  Receivables  Financing  (including  financing terms,  covenants, termination events and other provisions) is in the aggregate economically fair and reasonable  to the Issuer and the Receivables Entity, (2) all sales of accounts receivable and related assets to the  Receivables Entity are made at fair market value (as determined in good faith by the Issuer), and (3) the  financing terms, covenants, termination events and other provisions thereof shall be on market terms  (as determined in good faith by the Issuer) and may include Standard Securitization Undertakings.   The grant of a security interest in any accounts receivable of the Issuer or any Restricted Subsidiary  (other than a Receivables Entity) to secure Indebtedness under a Credit Facility or Indebtedness in  respect of the Notes shall not be deemed a Qualified Receivables Financing.        “Real Estate Portfolio Transfer” means the proposed transactions that are intended to result in  the  transfers  of  the  York  Property  and  of  the  London  Properties  from  the  Target  or  a  Restricted                                        39  EU-DOCS\26039728.6 





 






   Subsidiary to other entities, as described in the section of the Offering Memorandum entitled “The  Transactions—The Real Estate Portfolio Transfer”.        “Receivable” means a right to receive payment arising from a sale or lease of goods or services  by a Person pursuant to an arrangement with another Person pursuant to which such other Person is  obligated to pay for goods or services under terms that permit the purchase of such goods and services  on credit, as determined on the basis of GAAP, and shall include, in any event, any items of property  that would be classified as an “account,” “chattel paper,” “payment intangible” or “instrument” under  the Uniform Commercial Code as in effect in the State of New York and any “supporting obligations”  as so defined.        “Receivables  Assets” means any accounts  receivable  (including  any  bills  of  exchange)  and  related  assets  and  property  (including  proceeds  thereof)  from  time  to  time  originated,  acquired  or  otherwise owned by the Issuer or any Subsidiary, including without limitation assets that are or will be  the subject of a Qualified Receivables Financing.        “Receivables Entity” means a Wholly Owned Subsidiary of the Issuer or another Person in  which the Issuer or any Subsidiary of the Issuer makes an Investment and to which the Issuer or any  Subsidiary of the Issuer transfers accounts receivable and related assets, which engages in no activities  other than in connection with the financing of accounts receivable of the Issuer and its Subsidiaries, all  proceeds thereof and all rights (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 Directors of the Issuer (as provided below) as a Receivables Entity and:        (1)   no portion of the Indebtedness or any other obligations (contingent or otherwise) of             which (i) is guaranteed by the Issuer or any Restricted Subsidiary (excluding guarantees             of obligations (other than the principal of, and interest on, Indebtedness) pursuant to             Standard Securitization Undertakings); (ii) is recourse to or obligates the Issuer or any             Restricted  Subsidiary  in  any  way  other  than  pursuant  to  Standard  Securitization             Undertakings;  or  (iii) subjects  any  property  or  asset of  the  Issuer  or  any  Restricted             Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof,             other  than  pursuant  to  Standard  Securitization  Undertakings  except,  in  each  case,             Limited Recourse and Permitted Liens as defined in clauses (31) through (34) of the             definition thereof;        (2)   with  which  neither  the  Issuer  nor  any  other  Restricted  Subsidiary  has  any  material             contract,  agreement,  arrangement  or  understanding  (except  in  connection  with  a             Purchase Money Note or Qualified Receivables Financing) other than on terms which             the Issuer reasonably believes to be no less favorable to the Issuer or such Restricted             Subsidiary  than  those that  might  be  obtained  at the  time  from  Persons that  are  not             Affiliates of the Issuer, other than fees payable in the ordinary course of business in             connection with servicing Receivables; and        (3)   to which neither the Issuer nor any other Restricted Subsidiary has any obligation to             maintain or preserve such entity’s financial condition or cause such entity to achieve             certain levels of operating results (other than those related to or incidental to the relevant             Qualified Receivables Financing), except for Limited Recourse.   Any such designation by the Board of Directors of the Issuer shall be evidenced to the Trustee by filing  with the Trustee a copy of the resolution of the Board of Directors of the Issuer giving effect to such  designation and an Officer’s Certificate certifying that such designation complied with the foregoing  conditions.        “Receivables Fees” means distributions or payments made directly or by means of discounts  with respect to any participation interest issued or sold in connection with, and other fees paid to a  Person that is not a Restricted Subsidiary in connection with, any Receivables Financing.                                       40  EU-DOCS\26039728.6 





 






        “Receivables  Financing” means  any  transaction  or  series  of  transactions (other  than  any  transaction related to the SFS Business Transfer) that may be entered into by the Issuer or any of its  Subsidiaries  pursuant  to  which  the  Issuer  or  any  of  its  Subsidiaries  may  sell,  convey  or  otherwise  transfer to (a) a Receivables Entity (in the case of a transfer by the Issuer or any of its Subsidiaries), or  (b) any other Person (in the case of a transfer by a Receivables Entity), or may grant a security interest  in, any accounts receivable (whether now existing or arising in the future) of the Issuer or any of its  Subsidiaries, and any assets related thereto, including all collateral securing such accounts receivable,  all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of  such accounts receivable  and other assets which are customarily transferred or in respect of which  security interest are customarily granted in connection with asset securitization transactions involving  accounts receivable and any Hedging Obligations entered into by the Issuer or any such Subsidiary in  connection with such accounts receivable.        “Receivables  Repurchase  Obligation” means  any  obligation  of  a  seller  of  receivables  in  a  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 portion thereof  becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any  action taken by, any failure to take action by or any other event relating to the seller.        “Refinance” means refinance, refund, replace, renew, repay, modify, restate, defer, substitute,  supplement,  reissue,  resell,  extend  or  increase  (including  pursuant  to  any  defeasance  or  discharge  mechanism) and the terms “refinances,” “refinanced” and “refinancing” as used for any purpose in this  Indenture shall have a correlative meaning.        “Refinancing”  means,  collectively,  the  Change  of Control  Tender  (and  the  repurchase  and  cancellation of any Existing Notes in connection therewith or thereafter) and the  repayment of the  Existing Credit Facility and the York Property Mortgage.        “Refinancing Indebtedness” means Indebtedness of the Issuer or any Restricted Subsidiary to  refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or  discharge mechanism) any Indebtedness existing on the date of this Indenture or Incurred in compliance  with  this  Indenture including  Indebtedness  that  refinances  Refinancing  Indebtedness; provided,  however, that:        (1)   if  the  Indebtedness  being  refinanced  constitutes  Subordinated  Indebtedness,  the             Refinancing  Indebtedness  has  a  final  stated  maturity  at  the  time  such  Refinancing             Indebtedness is Incurred that is the same as or later than the final stated maturity of the             Indebtedness being refinanced or, if shorter, the Notes;        (2)   such Refinancing  Indebtedness  is  Incurred  in  an  aggregate  principal  amount  (or  if             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 discount, the             aggregate accreted value) then outstanding of the Indebtedness being refinanced (and             with respect to Reserved Indebtedness, including an amount equal to any unutilized             commitments  for such Reserved  Indebtedness being refinanced,  extended, replaced,             refunded, renewed or defeased to the extent permanently terminated in connection with             such Refinancing Indebtedness) (plus, without duplication, any additional Indebtedness             Incurred  to  pay  interest  or  premiums  required  by  the  instruments  governing  such             existing  Indebtedness,  tender  premiums,  and  costs,  expenses  and  fees  Incurred  in             connection therewith);        (3)   if the Indebtedness being refinanced is expressly subordinated to the Notes or any Note             Guarantee, such Refinancing Indebtedness is subordinated to the Notes or such Note             Guarantee, as applicable, on terms at least as favorable to the Holders as those contained             in the documentation governing the Indebtedness being refinanced; and                                        41  EU-DOCS\26039728.6 





 






        (4)   if the Issuer or any Subsidiary Guarantor was the obligor on the Indebtedness being             refinanced,  such  Indebtedness  is  incurred  either  by  the  Issuer  or  by  a Subsidiary             Guarantor;   provided, however, that Refinancing Indebtedness shall not include (i) Indebtedness of the Issuer that  refinances Indebtedness of an Unrestricted Subsidiary, or (ii) Indebtedness of the Issuer owing to and  held by the Issuer or any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and  held by the Issuer or any other Restricted Subsidiary.   Refinancing Indebtedness in respect of any Credit Facility or any other Indebtedness may be Incurred  from time to time after the termination, discharge, or repayment of any such Credit Facility or other  Indebtedness.        “Regulation S” means Regulation S under the Securities Act.        “Regulation S Global Note” means a Regulation S Temporary Global Note or Regulation S  Permanent Global Note, as appropriate.        “Regulation S Permanent Global Note” means a permanent Global Note in the form of Exhibit  A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on  behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal  to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the  Restricted Period.        “Regulation S Temporary Global Note” means a temporary Global Note in the form of Exhibit  A hereto deposited with or on behalf of and registered in the name of the Depositary or its nominee,  issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance  on Rule 903 of Regulation S (and includes the Regulation S Temporary Global Note Legend set forth  in Section 2.06(g) hereof).        “Related Taxes” means, without duplication (including, for the avoidance of doubt, without  duplication of any amounts paid pursuant to any Tax Sharing Agreement):        (1)   any  Taxes,  including  sales,  use,  transfer,  rental,  ad  valorem,  value  added,  stamp,             property, consumption, franchise, license, capital, registration, business, customs, net             worth,  gross  receipts,  excise,  occupancy,  intangibles  or  similar  Taxes  (other  than             (x) Taxes  measured  by  income  and  (y) withholding  taxes),  required  to  be  paid             (provided such Taxes are in fact paid) by any Parent by virtue of its:              (a)   being  incorporated  or  otherwise  being  established  or  having  Capital  Stock                   outstanding (but not by virtue of owning stock or other equity interests of any                   corporation  or  other  entity  other  than,  directly  or  indirectly,  the Parent                   Guarantor or any Subsidiary of the Parent Guarantor);              (b)   issuing or holding Subordinated Shareholder Funding;              (c)   being a holding company parent, directly or indirectly, of the  Issuer or any                   Subsidiary of the Issuer;              (d)   receiving dividends from or other distributions in respect of the Capital Stock                   of, directly or indirectly, the Issuer or any Subsidiary of the Issuer; or              (e)   having made any payment in respect to any of the items for which the Issuer is                   permitted to make payments to any Parent pursuant to Section 4.05; or                                        42  EU-DOCS\26039728.6 





 






        (2)   if and for so long as the Issuer is a member of or included in a group filing a consolidated             or  combined  tax  return  with  any  Parent  or,  for  so  long  as  the  Issuer  is  an  entity             disregarded as separate from its Parent for U.S. federal income tax purposes, any Taxes             measured by income for which such Parent is liable up to an amount not to exceed with             respect to such Taxes the amount of any such Taxes that the Issuer and Subsidiaries of             the  Issuer  would  have  been  required  to  pay  on  a  separate  company  basis  or  on  a             consolidated basis if the Issuer and the Subsidiaries of the Issuer had paid tax on a             consolidated,  combined,  group,  affiliated  or  unitary  basis  on  behalf  of  an  affiliated             group consisting only of the Issuer and the Subsidiaries of the Issuer.        “Responsible Officer” means, when used with respect to the Trustee, any officer within the  corporate  trust  department  of  the  Trustee  having  direct  responsibility  for  the  administration  of  this  Indenture and any other officers of the Trustee to whom any corporate trust matter is referred because  of such person’s knowledge of any familiarity with the particular subject.        “Restricted Investment” means any Investment other than a Permitted Investment.        “Restricted  Period” with  respect  to  any  Notes,  means  the  period  of 40  consecutive  days  beginning on and including the later of (a) the day on which such Notes are first offered to persons other  than distributors (as defined in Regulation S) in reliance on Regulation S, written notice of which day  shall be promptly given by the Issuer to the Trustee, and (b) the Issue Date with respect to such Notes.        “Restricted Subsidiary” means a Subsidiary of the Issuer other than an Unrestricted Subsidiary.        “Rule 144A” means Rule 144A under the Securities Act.        “S&P” means S&P  Global  Ratings or  any  of  its  successors  or  assigns  that  is  a  Nationally  Recognized Statistical Rating Organization.        “Sale” has the meaning ascribed to it in the definition of “Pro Forma EBITDA.”        “SEC” means the U.S. Securities and Exchange Commission.        “Secured Parties” has the meaning ascribed to it in the Intercreditor Agreement.        “Securities  Act” means  the  U.S. Securities  Act  of 1933,  as  amended,  and  the  rules  and  regulations of the SEC promulgated thereunder, as amended.        “Securitization Assets” means (a) the account receivable, royalty or other revenue streams and  other rights to payment and other assets related thereto subject to a Qualified Receivables Financing  and the proceeds thereof and (b) contract rights, lockbox accounts and records with respect to such  accounts receivable and any other assets customarily transferred together with accounts receivable in a  securitization financing.        “Security Agreement” means  the  Pledge  and  Security  Agreement,  between  the  Issuer  and  Deutsche Bank Trust Company Americas, as Collateral Agent.        “Security Documents” means, collectively, (i) the New Credit Facilities Security Documents,  (ii) the Notes Security Documents and (ii) the Additional First Lien Security Documents.        “Senior  Secured  Indebtedness” means,  with  respect  to  any  Person as  of  any  date  of  determination, any Specified Indebtedness; provided that such Indebtedness is in each case secured by  a Lien on the assets of the Issuer or its Restricted Subsidiaries on a basis pari passu with or senior to the  security in favor of the Notes.                                        43  EU-DOCS\26039728.6 





 






        “Servicer Agreement” means any agreement or customary terms pursuant to which the Issuer  or  any  Restricted  Subsidiary  provides  customary  servicing  services  in  connection  with  any  securitization of loan portfolios by the SFS Business.        “Significant  Subsidiary” means  any  Restricted  Subsidiary  that  meets  any  of  the  following  conditions:        (1)   the  Issuer’s  and  the  Restricted  Subsidiaries’ investments  in  and  advances  to  the             Restricted  Subsidiary  exceed 10%  of  total  assets  of  the  Issuer  and  the  Restricted             Subsidiaries on a consolidated basis as of the end of the most recently completed fiscal             year;        (2)   the Issuer’s and the Restricted Subsidiaries’ proportionate share of the total assets (after             intercompany eliminations) of the Restricted Subsidiary exceeds 10% of total assets of             the Issuer and the Restricted Subsidiaries on a consolidated basis as of the end of the             most recently completed fiscal year; or        (3)   if  positive,  the  Issuer’s  and  the  Restricted  Subsidiaries’ equity  in  the  income  from             continuing operations before income taxes, extraordinary items and cumulative effect             of a change in accounting principle of the Restricted Subsidiary exceeds 10% of such             income of the Issuer and the Restricted Subsidiaries on a consolidated basis for the most             recently completed fiscal year.        “Similar  Business” means  (a)  any  businesses,  services  or  activities  (including  marketing)  engaged in by the Issuer, or any of its Subsidiaries on the Completion Date, (b) businesses, services or  activities that are targeted towards (x) the luxury or premium segments of a market or (y) financially  successful clientele and (c) any businesses, services and activities (including marketing) engaged in by  the Issuer or any of its Subsidiaries that are (i) related, complementary, incidental, ancillary or similar  to any of the foregoing or (ii) are reasonable extensions or developments of any thereof.        “SFS Business” means the Sotheby’s Financial Services business that engages in art-related  financing activities by making loans that are secured by works of art.        “SFS  Business  Transfer”  means  the  transactions  that  will  result  in  the  transfer  of  the  SFS  Business from the Issuer to other entities (which will include the sale of the loan receivables arising  pursuant to the existing portfolio of loans of the SFS Business and related rights and will include the  Target being retained to continue servicing the existing portfolio of loans and any future portfolio of  loans  made  by  the  SFS  Business),  which  transactions  will  be  completed  in  all  material  respects  substantially concurrently with the closing of the Acquisition.        “Specified Indebtedness” means with respect to any Person as of any date of determination, any  Indebtedness for borrowed money that is Incurred under Section 4.04(a) or clauses (1), (4)(a), (4)(b),  (4)(c), (5), (7), (14) or (16) of  Section 4.04(b) and  any  Refinancing  Indebtedness  in  respect  of  the  foregoing.        “Standard  Securitization  Undertakings” means  representations,  warranties,  covenants,  indemnities and guarantees of performance entered into by the Issuer or any Subsidiary of the Issuer  which the Issuer has determined in good faith to be customary in a Receivables Financing, securitization  financing or for such type of factoring or similar arrangement including, without limitation, Limited  Recourse and those relating to the servicing of the assets of a Receivables Entity, it being understood  that  any  Receivables  Repurchase  Obligation  shall  be  deemed  to  be  a  Standard  Securitization  Undertaking.        “Stated Maturity” means, with respect to any installment of interest or principal on any series  of Indebtedness, the date on which the payment of interest or principal is scheduled to be paid, and will                                        44  EU-DOCS\26039728.6 





 






   not include any contingent obligations to repay, redeem or repurchase any such interest or principal  prior to the date scheduled for the payment thereof.        “Subordinated  Indebtedness” means,  in  the  case  of  the  Issuer,  any  Indebtedness  (whether  outstanding on the Issue Date or thereafter Incurred) which is expressly subordinated or junior in right  of payment to the Notes pursuant to a written agreement and, in the case of a Subsidiary Guarantor, any  Indebtedness  (whether  outstanding  on  the Issue  Date or  thereafter  Incurred)  which  is  expressly  subordinated or junior in right of payment pursuant to a written agreement to the Note Guarantee of  such Subsidiary Guarantor.        “Subordinated Shareholder Funding” means, collectively, any funds provided to the Issuer by  any Parent, any Affiliate of any Parent or any Permitted Holder or any Affiliate 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 any such security, instrument or agreement  and any other security or instrument other than Capital Stock issued in payment of any obligation under  any  Subordinated  Shareholder  Funding; provided,  however,  that  such  Subordinated  Shareholder  Funding:        (1)   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 Maturity of the             Notes (other than through conversion or exchange of such funding into Capital Stock             (other than Disqualified Stock) of the Issuer or any funding meeting the requirements             of this definition) or the making of any such payment prior to the first anniversary of             the  Stated  Maturity of  the  Notes  is  restricted  by the  Intercreditor  Agreement,  an             Additional Intercreditor Agreement or another intercreditor agreement;        (2)   does  not  require,  prior  to the  first  anniversary  of  the  Stated  Maturity  of  the  Notes,             payment of cash interest, cash withholding amounts or other cash gross-ups, or any             similar cash amounts or the making of any such payment prior to the first anniversary             of the  Stated Maturity of the  Notes is restricted by the  Intercreditor Agreement, an             Additional Intercreditor Agreement or another intercreditor agreement;        (3)   contains no change of control or similar provisions and does not accelerate and has no             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 following             the Stated Maturity of the Notes or the payment of any amount as a result of any such             action or provision or the exercise of any rights or enforcement action, in each case,             prior  to  the  date  that  is  six  months  following  the  Stated  Maturity  of  the  Notes,  is             restricted  by the  Intercreditor  Agreement,  an  Additional  Intercreditor  Agreement  or             another intercreditor agreement;        (4)   does not provide for or require any security interest or encumbrance over any asset of             the Issuer or any of the Restricted Subsidiaries; and        (5)   pursuant to its terms or to an intercreditor agreement, is fully subordinated and junior             in  right  of  payment  to  the  Notes  pursuant  to  subordination,  payment  blockage  and             enforcement limitation terms which are customary in all material respects for similar             funding or are no less favourable in any material respect to Holders than those contained             in the Intercreditor Agreement as in effect on the Issue Date.        “Subsidiary” means, with respect to any Person:        (1)   any corporation, association, or other business entity (other than a partnership, joint             venture, limited liability company or similar entity) of which more than 50% of the 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 trustees                                       45  EU-DOCS\26039728.6 





 






              thereof is at the time of determination owned or controlled, directly or indirectly, by             such Person or one or more of the other Subsidiaries of that Person or a combination             thereof; or        (2)   any partnership, joint venture, limited liability company or similar entity of which:              (a)   more  than 50%  of  the  capital  accounts,  distribution  rights,  total  equity  and                   voting interests or general or limited partnership interests, as applicable, are                   owned or controlled, directly or indirectly, by such Person or one or more of                   the other Subsidiaries of that Person or a combination thereof whether in the                   form  of  membership,  general,  special  or  limited  partnership  interests  or                   otherwise; and              (b)   such Person or any Subsidiary of such Person is a controlling general partner                   or otherwise controls such entity.        “Subsidiary Guarantee” means a Note Guarantee provided by a Subsidiary Guarantor.        “Subsidiary  Guarantor”  means  any  Restricted  Subsidiary  of  the  Issuer  that Guarantees  the  Notes.        “Target” means, before the Completion Date, Sotheby’s.        “Target Group” means collectively the Target and its subsidiaries.        “Taxes” means any present or future tax, duty, levy, assessment or other governmental charge,  including any related interest, penalties or additions to tax.        “Tax Sharing Agreement” means any tax sharing or profit and loss pooling or similar agreement  with customary or arm’s-length terms entered into with any Parent or Unrestricted Subsidiary, as the  same may be amended, supplemented, waived or otherwise modified from time to time in accordance  with the terms thereof and of this Indenture.        “Temporary Cash Investments” means any of the following:        (1)   any investment in              (a)   direct  obligations  of,  or  obligations  Guaranteed  by,  (i) the  United  States  of                   America,  (ii) Canada,  (iii) the  United  Kingdom,  (iv) any  European  Union                   member state, (v) Switzerland, (vi) any country in whose currency funds are                   being held specifically pending application in the making of an investment or                   capital expenditure by the Issuer or a Restricted Subsidiary in that country with                   such  funds  or  (vii) any  agency  or  instrumentality  of  any  such  country  or                   member state, or              (b)   direct obligations of any country recognized by the United States of America                   rated at least “A” by S&P, “A-1” by Moody’s or “A” by Fitch (or, in either                   case, the equivalent of such rating by such organization or, if no rating of S&P,                   Moody’s or Fitch then exists, the equivalent of such rating by any Nationally                   Recognized Statistical Rating Organization);        (2)   overnight  bank  deposits,  and  investments  in  time  deposit  accounts,  certificates  of             deposit, bankers’ acceptances and money market deposits (or, with respect to foreign             banks, similar instruments) maturing not more than one year after the date of acquisition             thereof issued by:                                        46  EU-DOCS\26039728.6 





 






              (a)   any institution authorized to operate as a bank in any of the countries or member                   states referred to in sub-clause (1)(a) above, or              (b)   any bank or trust company organized under the laws of any such country or                   member state or any political subdivision thereof,   in each case, having capital and surplus aggregating in excess of $250 million (or the foreign currency  equivalent thereof) and whose long-term debt is rated at least “A” by S&P, “A-2” by Moody’s or “A”  by Fitch (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P,  Moody’s or Fitch then exists, the equivalent of such rating by any Nationally Recognized Statistical  Rating Organization) at the time such Investment is made;        (3)   repurchase obligations with a term of not more than 30 days for underlying securities             of the types described in clause (1) or (2) above entered into with a Person meeting the             qualifications described in clause (2) above;        (4)   Investments in commercial paper, maturing not more than 270 days after the date of             acquisition, issued by a Person (other than the Issuer or any of its Subsidiaries), with a             rating at the  time  as of which  any  Investment therein is  made of “P-2” (or higher)             according  to  Moody’s, “A-2” (or  higher)  according  to  S&P or  “F-2”  (or  higher)             according to Fitch (or, in either case, the equivalent of such rating by such organization             or, if no rating of S&P, Moody’s or Fitch then exists, the equivalent of such rating by             any Nationally Recognized Statistical Rating Organization);        (5)   Investments in securities maturing not more than one year after the date of acquisition             issued or fully Guaranteed by any state, commonwealth or territory of the United States             of America, Canada, the United Kingdom, Switzerland, any European Union member             state  or  by  any  political  subdivision  or  taxing  authority  of  any  such  state,             commonwealth, territory, country or member state, and rated at least “BBB-” by S&P,             “Baa3” by Moody’s or “BBB-” by Fitch (or, in either case, the equivalent of such rating             by  such organization  or,  if  no  rating  of  S&P, Moody’s or  Fitch then  exists,  the             equivalent  of  such  rating  by  any  Nationally  Recognized  Statistical  Rating             Organization);        (6)   bills  of  exchange  issued  in  the  United  States of  America,  Canada, Switzerland, the             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);        (7)   any money market deposit accounts issued or offered by a commercial bank organized             under the laws of a country that is a member of the Organization for Economic Co-            operation  and  Development,  in  each  case,  having  capital  and  surplus  in  excess  of             $250 million (or the foreign currency equivalent thereof) or whose long term debt is             rated at least “A” by S&P, “A-2” by Moody’s or “A” by Fitch (or, in either case, the             equivalent of such rating by such organization or, if no rating of S&P, Moody’s or Fitch             then  exists,  the  equivalent  of  such  rating  by  any  Nationally  Recognized  Statistical             Rating Organization) at the time such Investment is made;        (8)   investment funds investing 95% of their assets in securities of the type described in             clauses (1) through (7) above (which funds may also hold reasonable amounts of cash             pending investment and/or distribution); and        (9)   investments  in  money  market  funds  complying  with  the  risk  limiting conditions  of             Rule 2a-7 (or any successor rule) of the SEC under the U.S. Investment Company Act             of 1940, as amended.                                        47  EU-DOCS\26039728.6 





 






        “Total Assets” means the consolidated total assets of the Issuer and the Restricted Subsidiaries  as shown on the most recent consolidated balance sheet of the Issuer prepared on the basis of GAAP  prior to the relevant date of determination calculated to give pro forma effect to any Purchase and Sales  that have occurred subsequent to such period, including any such Purchase to be made with the proceeds  of the Indebtedness giving rise to the need to calculate Total Assets.        “Transactions” means the Acquisition, the issuance of the Notes, the borrowing of loans under  the New Credit Facilities on or prior to the Completion Date and the issuance of any letters of credit  thereunder  on  the  Completion  Date,  the  Refinancing,  the  Real  Estate  Portfolio  Transfer  and  the  Permitted Sale and Leaseback Transactions, the SFS Business Transfer and in each case, the application  of 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  fees,  costs  and  expenses incurred in connection with any of the foregoing) and as otherwise disclosed in the Offering  Memorandum.        “Treasury Rate” means, as of the applicable redemption date, the yield to maturity as of such  redemption  date  of  United  States  Treasury  securities  with  a  constant  maturity  (as  compiled  and  published in the most recent Federal Reserve Statistical Release H. 15 (519) that has become publicly  available at least two (2) Business Days prior to such redemption date (or, if such Statistical Release is  no longer published, any publicly available source of similar market data)) most nearly equal to the  period from such redemption date to October 15, 2022; provided that if the period from such redemption  date to October 15, 2022, is less than one year, the weekly average yield on actually traded United  States Treasury securities adjusted to a constant maturity of one year will be used.        “Transfer Restricted Notes” means Definitive Registered Notes and any other Notes that bear  or are required to bear the Private Placement Legend.        “U.S. Guarantor” means any Guarantor organized in the United States of America.        “U.S. Government Obligations” means securities that are (a) direct obligations (or certificates  representing an ownership interest in such obligations) of the United States of America, for the timely  payment of which its full faith and credit is pledged or (b) obligations (or certificates representing an  ownership interest in such obligations) of a Person controlled or supervised by and acting as an agency  or instrumentality of the United States of America, rated at least “A-1” by S&P, “P-1” by Moody’s or  “A-1” by Fitch, and which are not callable or redeemable at the option of the issuer thereof.        “Uniform Commercial Code” means the New York Uniform Commercial Code.        “Unrestricted Subsidiary” means:        (1)   any  Subsidiary  of  the  Issuer  that  at  the  time  of  determination  is  an  Unrestricted             Subsidiary (as designated by the Board of Directors of the Issuer in the manner provided             below);        (2)   any Issue Date Unrestricted Subsidiaries (until any such Subsidiary is designated as a             Restricted Subsidiary in the manner provided below or is no longer a Subsidiary of the             Issuer); and        (3)   any Subsidiary of an Unrestricted Subsidiary.        The Board of Directors of the Issuer may designate any Subsidiary of the Issuer (including any  newly  acquired  or  newly  formed  Subsidiary  or  a  Person  becoming  a  Subsidiary  through  merger,  consolidation or other business combination transaction, or Investment therein) to be an Unrestricted  Subsidiary only if:                                        48  EU-DOCS\26039728.6 





 






        (1)   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 Issuer, or any other             Subsidiary of the Issuer which is not a Subsidiary of the Subsidiary to be so designated             or otherwise an Unrestricted Subsidiary; and        (2)   such designation and the Investment of the Issuer and the Restricted Subsidiaries in             such Subsidiary complies with Section 4.05.        Any such designation by the Board of Directors of the Issuer shall be evidenced to the Trustee  by filing with the Trustee a copy of the resolution of the Board of Directors of the Issuer giving effect  to  such  designation  and  an  Officer’s  Certificate  certifying  that  such  designation  complies  with  the  foregoing conditions.        The  Board  of  Directors  of  the  Issuer  may  designate  any  Unrestricted  Subsidiary  to  be  a  Restricted Subsidiary; provided that immediately after giving effect to such designation (1) no Default  or Event of Default would result therefrom and (2)(x) the Issuer could Incur at least $1.00 of additional  Indebtedness under Section 4.04(a) or (y) the Consolidated Net Leverage Ratio would be no higher than  it was 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 Directors shall be evidenced to  the Trustee by promptly filing with the Trustee a copy of the resolution of the Board of Directors giving  effect to such designation or an Officer’s Certificate certifying that such designation complied with the  foregoing provisions.        “Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding  and normally entitled to vote in the election of directors.        “Wholly Owned Subsidiary” means (1) in respect of any Person, a Person, all of the Capital  Stock of which (other than (a) directors’ qualifying shares or an immaterial amount of shares 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 an Affiliate of the Issuer solely  for the purpose of permitting such Person (or such Person’s designee) to vote with respect to customary  major events with respect to such 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 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.        “York Property” means the property containing the corporate offices of the Target as well as  the Target’s sole North American auction salesroom and principal North American exhibition space,  including S|2, the Target’s private sale exhibition gallery.        “York Property Mortgage” means the loan agreement dated as of July 1, 2015, as amended or  supplemented,  between, inter alios,  1334  York,  LLC  as  borrower and  HSBC  Bank  USA,  National  Association and Industrial and Commercial Bank of China, Limited, New York Branch as lenders,  pursuant to which a mortgage was created over the York Property.   Section 1.02 Other Definitions.                                                                    Defined                                                                     in  Term                                                              Section  “Additional Amounts”.............................................................................................................. 4.16(a)  “Additional Notes” .................................................................................................................. Preamble  “Additional Intercreditor Agreement”  .................................................................................... 4.17(a)  “Advance Offer”  ..................................................................................................................... 4.08(c)  “Advance Portion”  ................................................................................................................. 4.08(c)                                       49  EU-DOCS\26039728.6 





 






                                                                                     Defined                                                                                      in   Term                                                                             Section   “Affiliate Transactions” ........................................................................................................... 4.09(a)   “Applicable Law”  ................................................................................................................... 12.14   “Applicable Premium Deficit”  ................................................................................................ 8.01(a)   “Asset Disposition Offer” ........................................................................................................ 4.08(c)   “Asset Disposition Offer Amount” ........................................................................................... 4.08(f)   “Asset Disposition Offer Period” ............................................................................................ 4.08(f)   “Asset Disposition Purchase Date” ......................................................................................... 4.08(f)   “Authenticating Agent”............................................................................................................ 2.02   “Authentication Order” ........................................................................................................... 2.02   “Change of Control Offer” ...................................................................................................... 4.03(b)   “Change of Control Payment”................................................................................................. 4.03(b)(1)   “Change of Control Payment Date” ........................................................................................ 4.03(b)(2)   “Cured Default” ...................................................................................................................... 6.01(d)(2)   “covenant defeasance option” ................................................................................................. 8.01(b)   “defeasance trust” ................................................................................................................... 8.02(a)   “Event of Default” ................................................................................................................... 6.01(a)   “Elected Amount”  ................................................................................................................... 4.24   “Excess Proceeds” ................................................................................................................... 4.08(c)   “Foreign Currency” ................................................................................................................ 4.04(k)   “Initial Agreement” ................................................................................................................. 4.07(b)(5)   “Initial Default”....................................................................................................................... 6.01(d)   “Initial Lien”  .......................................................................................................................... 4.06(a)   “Initial Notes” ......................................................................................................................... Preamble   “LCT Election” ........................................................................................................................ 4.25   “LCT Test Date” ...................................................................................................................... 4.25   “legal defeasance option” ....................................................................................................... 8.01(b)   “Notes” .................................................................................................................................... Preamble   “Paying Agent”  ....................................................................................................................... 2.03(a)   “payment default” .................................................................................................................... 6.01(a)(5)(A)   “Permitted Payments” ............................................................................................................. 4.05(b)   “protected purchaser” ............................................................................................................. 2.07   “Registrar” .............................................................................................................................. 2.03(a)   “Regulation S-K”  .................................................................................................................... 4.10(b)(1)(A)   “Regulation S-X”  .................................................................................................................... 4.10(b)(1)(B)   “Restricted Payment” .............................................................................................................. 4.05(a)(5)   “Reversion Date” ..................................................................................................................... 4.11   “Rule 144A Global Notes” ...................................................................................................... 2.01(c)   “Special Mandatory Redemption” ........................................................................................... 3.10(b)   “Special Mandatory Redemption Date” .................................................................................. 3.10(c)   “Special Mandatory Redemption Price” ................................................................................. 3.10(b)   “Special Termination Date” .................................................................................................... 3.10(b)   “Successor Company” ............................................................................................................. 5.01(a)(1)   “Suspension Event” ................................................................................................................. 4.11   “Tax Jurisdiction”  .................................................................................................................. 4.16(a)   “Tax Redemption Date”........................................................................................................... 3.11(a)                                                 50  EU-DOCS\26039728.6 





 






                                                                    Defined                                                                     in  Term                                                              Section  “Transfer Agent” ..................................................................................................................... 2.03(a)  “Trustee” ................................................................................................................................. Preamble    Section 1.03 Rules of Construction.        Unless the context otherwise requires        (a)   a term has the meaning assigned to it;        (b)   an accounting term not otherwise defined has the meaning assigned to it in accordance  with GAAP;        (c)   “or” is not exclusive;        (d)   “will” shall be interpreted to express a command;        (e)   “including” means including without limitation;        (f)   words in the singular include the plural and words in the plural include the singular;        (g)   provisions apply to successive events and transactions; and        (h)   references to sections of or rules under the Securities Act will be deemed to include  substitute, replacement of successor sections or rules adopted by the SEC from time to time.                                    ARTICLE 2                                  THE NOTES   Section 2.01 Form and Dating.        (a)   General.        The Notes  and  the  Trustee’s  certificate  of  authentication with  respect  thereto will  be  substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements  required by law, stock exchange rule or usage and as provided herein. The Issuer shall approve the form  of the Notes and any notation, legend or endorsement thereon. Each Note will be dated the date of its  authentication.         The terms and provisions contained in the Notes will constitute, and are hereby expressly made,  a part of this Indenture and the Issuer, the Guarantors and the Trustee, by their execution and delivery  of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to  the  extent  any  provision  of  any  Note  conflicts  with  the  express  provisions  of  this  Indenture,  the  provisions of this Indenture shall govern and be controlling.        (b)   Global Notes.        Global Notes  issued  in  global  form  will  be  substantially  in  the  form  of Exhibit A hereto  (including  the  Global  Note  Legend  thereon  and  the  “Schedule  of Increases  or Decreases”  attached  thereto). Notes  issued in definitive  form will be  substantially in the  form of Exhibit A hereto (but  without the Global Note Legend thereon and without the “Schedule of Increases or Decreases” attached  thereto). Each Global Note will represent such of the outstanding Notes as will be specified therein and  each shall provide that it represents the aggregate principal amount of outstanding Notes from time to  time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby  may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions                                       51  EU-DOCS\26039728.6 





 






   and  purchases  and  cancellations.  Any  endorsement  of  a  Global  Note  to  reflect  the  amount  of  any  increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be  made by the Registrar, the Notes Custodian or DTC, at the direction of the Registrar, in accordance  with instructions given by the Holder thereof as required by Section 2.06.        (c)   Rule 144A Global Notes and Regulation S Global Notes.        Notes offered and sold in reliance on Regulation S will be issued initially in the form of the  Regulation S Temporary Global Note, which will be deposited on behalf of the purchasers of the Notes  represented  thereby  with  the Registrar  (or  Notes  Custodian),  as  custodian  for  the  Depositary,  and  registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated  agents holding on behalf of Euroclear or Clearstream, duly executed by the Issuer and authenticated by  the  Trustee  as  hereinafter  provided.  Following  the  termination  of  the  Restricted  Period,  beneficial  interests in the Regulation S Temporary Global Note will be automatically exchanged for beneficial  interests in the Regulation S Permanent Global Note, with no further action by the Issuer, pursuant to  the  Applicable  Procedures,  on  the  first  day  following  the  expiry  of  the  Restricted  Period.  Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee will  cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S  Temporary  Global  Note  and  the  Regulation  S  Permanent  Global  Note  may  from  time  to  time  be  increased or decreased by adjustments made by the Trustee to the schedule of increases or decreases in  the Global Note, in connection with transfers of interest as hereinafter provided.        Notes offered and sold to QIBs in reliance on Rule 144A shall be issued initially in the form of  one or more Definitive Registered Notes or one or more Global Notes, each substantially in the form of  Exhibit A hereto, with such applicable legends as are provided in Exhibit A hereto, except as otherwise  permitted herein. Such Notes in the form of Global Notes (the “Rule 144A Global Notes”) shall be  deposited on behalf of the purchasers of the Notes represented thereby with the Registrar (or Notes  Custodian) as custodian for DTC, and registered in the name of Cede & Co., as nominee of DTC, for  the accounts of DTC, duly executed by the Issuer and authenticated by the Trustee or the Authenticating  Agent as hereinafter provided. The aggregate principal amount of the Rule 144A Global Notes may  from time to time be increased or decreased by adjustments made by the Registrar on Schedule A to the  Rule 144A  Global  Notes  and  recorded  in  the  register  maintained  by  the  Registrar,  as  hereinafter  provided.        (d)   Definitive Registered Notes.        Definitive Registered Notes shall be issued in accordance with this Indenture. Notes issued in  definitive registered form will be substantially in the form of Exhibit A hereto (excluding the Global  Note Legend thereon and without the “Schedule of Increases or Decreases in the Global Note” attached  thereto).        (e)   Book-Entry Provisions.        The Applicable Procedures shall be applicable to Book-Entry Interests in the Global Notes that  are held by Participants through DTC.        (f)   Denomination.        The Notes shall be in minimum denominations of $200,000 and in integral multiples of $1,000  in excess thereof.   Section 2.02 Execution and Authentication.        At least one Officer must execute the Notes on behalf of the Issuer by manual, facsimile, or  electronic (in “.pdf’ format) signature. If an Officer whose signature is on a Note no longer holds that  office at the time a Note is authenticated, the Note will nevertheless be valid.                                       52  EU-DOCS\26039728.6 





 






        A Note will not be valid until authenticated by the manual signature of the authorized signatory  of the Trustee or its Authenticating Agent. The signature will be conclusive evidence that the Note has  been authenticated under this Indenture. Notwithstanding the foregoing, if any Note shall have been  authenticated and delivered hereunder but never issued and sold by the Issuer, the Issuer shall deliver  such Note to the Trustee for cancellation pursuant to Section 2.11.        The Trustee or the Authenticating Agent will, upon receipt of a written order of the Issuer signed  by an authorized representative (an “Authentication Order”), authenticate the Notes for issue that may  be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount  of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized  for  issuance  by  the  Issuer  pursuant  to  one  or  more  Authentication  Orders,  except  as  provided  in  Section 2.07.        The Trustee may appoint one or more authentication agents (each, an “Authenticating Agent”)  to authenticate Notes. Such an Authenticating Agent may authenticate Notes whenever the Trustee may  do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such  Authenticating Agent. An Authenticating Agent has the same rights as an Agent to deal with Holders  or an Affiliate of the Issuer. The Trustee hereby appoints Deutsche Bank Trust Company Americas as  its Authenticating Agent in respect of the Notes. Deutsche Bank Trust Company Americas accepts such  appointment, and the Issuer hereby confirms these appointments.   Section 2.03 Transfer Agent, Registrar and Paying Agent.        (a)   The  Issuer  shall  maintain  an  office  or  agency  where  Notes  may  be  presented  for  registration (the “Registrar”) in New York, New York and where Notes may be presented for payment  (the “Paying Agent”); provided that payments on Global Notes will be made to Cede & Co. as the  registered holder of the Global Notes, which will in turn make such payments to DTC or its nominee.  The Registrar shall keep a register reflecting ownership of the Notes outstanding from time to time and  of their transfer and exchange. In addition, the Issuer shall maintain an office or agency in New York,  New York where Notes may be presented for transfer or exchange (the “Transfer Agent”). The Issuer  may have one or more co-registrars and one or more additional transfer and paying agents. The terms  “Paying Agent” and “Transfer Agent” include the Paying Agent, the Transfer Agent and any additional  paying agent or transfer agent, as applicable, and the term “Registrar” includes any co-registrars. The  Issuer initially appoints Deutsche Bank Trust Company Americas, in New York, who accepts such  appointment, as Paying Agent. The Issuer initially appoints Deutsche Bank Trust Company Americas,  in respect of the Notes, who accepts such appointment, as a Transfer Agent. The Issuer initially appoints  Deutsche Bank Trust Company Americas, in respect of the Notes, who accepts such appointment, as  Registrar. The Registrar shall provide a copy of the register and any update thereof to the Issuer upon  request. The Issuer initially appoints The Depository Trust Company to act as Depositary with respect  to the Global Notes. The Issuer initially appoints the Trustee to act as Paying Agent and Registrar for  the Notes and to act as Custodian with respect to the Global Notes.         (b)   The  Issuer  shall  enter  into  an  appropriate  agency  agreement  with  any  Registrar  or  Paying Agent not a party to this  Indenture. Such  agreement shall implement the  provisions  of this  Indenture that relate to such agent. The Issuer shall notify the Trustee of the name and address of any  such agent. If the Issuer fails to maintain a Transfer Agent, Registrar or Paying Agent, the Trustee may  act,  or  may  arrange  for  appropriate  parties  to  act,  as  such  and  shall  be entitled  to  appropriate  compensation therefor pursuant to Section 7.07. The Issuer or any Restricted Subsidiary may act as  Paying Agent or Registrar in respect of the Notes.        (c)   The Issuer may change any Registrar, Paying Agent or Transfer Agent upon written  notice to such Registrar, Paying Agent or Transfer Agent and to the Trustee, without prior notice to the  Holders; provided, however, that no such removal shall become effective until (i) acceptance of an  appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and  such successor Registrar, Paying Agent, or Transfer Agent, as the case may be, and delivered to the                                       53  EU-DOCS\26039728.6 





 






   Trustee or (ii) notification to the Trustee that the Trustee shall, to the extent that it determines that it is  able, serve as Registrar or Paying Agent or Transfer Agent until the appointment of a successor in  accordance with clause (i) above. The Registrar, Paying Agent or the Transfer Agent may resign by  providing 30 days’ written notice to the Issuer and the Trustee.        If any Notes are listed on an exchange and the rules of such exchange so require, the Issuer will  satisfy any requirement of such exchange as to Paying Agents, Registrars and Transfer Agents and will  comply with any notice requirements required under such exchange in connection with any change of  Paying Agent, Registrar or Transfer Agent.   Section 2.04 Paying Agent not a party to this Indenture to Hold Money.        No later than 10:00 a.m. (New York time) on the  Business Day that is the due  date  of the  principal of, interest and premium (if any) on any Note, the Issuer shall deposit with the Paying Agent  (or if the Issuer or a Restricted Subsidiary of the Issuer is acting as Paying Agent, segregate and hold in  trust for the benefit of, or to the extent the concept of trust is not recognized in the relevant jurisdiction,  hold on behalf of and for the  benefit of, the  Persons entitled thereto) a  sum sufficient to pay such  principal, interest and premium (if any) when so becoming due and, subject to receipt of such monies,  the Paying Agent shall make payment on the Notes in accordance with this Indenture. The Issuer shall  require each Paying Agent that is not a party to this Indenture to agree in writing (and any Paying Agent  party to this Indenture agrees) that such Paying Agent shall hold for the benefit of the Trustee all money  held by the Paying Agent for the payment of principal of, interest and premium (if any) on the Notes  and shall notify the Trustee of any default by the Issuer (or any other obligor on the Notes) in making  such payment. The Issuer shall, no later than 10:00 a.m. (New York time) the Business Day prior to the  date on which such payment is due, send to the Paying Agent an irrevocable payment instruction. If the  Issuer or a Restricted Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying  Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying Agent to pay all  money held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon  complying  with  this  Section 2.04,  the  Paying  Agent  shall  have  no  further  liability  for  the  money  delivered to the Trustee. For the avoidance of doubt, the Paying Agent and the Trustee shall be held  harmless and have no liability or obligation with respect to payments or disbursements to be made by  the Paying Agent and Trustee (i) for which payment instructions are not made or that are not otherwise  deposited by the respective times set forth in this Section 2.04, and (ii) until they have confirmed receipt  of funds sufficient to make the relevant payment.        In the event that the funds received by the Paying Agent to be applied in accordance with this  Section 2.04 exceeds the amount necessary to satisfy all of the Issuer’s obligations pursuant to the Notes  and this Indenture, upon request by the Issuer, the Paying Agent shall promptly furnish the Issuer with  such excess amount.   Section 2.05 Holder Lists.        The Registrar shall preserve in as current a form as is reasonably practicable the most recent  list available to it of the names and addresses of Holders. Following the exchange of beneficial interests  in  Global  Notes  for Definitive  Registered  Notes,  the Issuer  shall  furnish,  or  cause the  Registrar to  furnish, to the Trustee, in writing at least five Business Days before each interest payment date, and at  such other times as the Trustee may reasonably require, the names and addresses of Holders of such  Definitive Registered Notes.   Section 2.06 Transfer and Exchange.        (a)   Transfer and Exchange of Global Notes.        A Regulation S Global Note or Rule 144A Global Note may not be transferred except as a  whole by DTC to a Notes Custodian or a nominee of such Notes Custodian, by a Notes Custodian or a  nominee of such Notes Custodian to DTC or to another nominee or Notes Custodian of DTC, or by                                       54  EU-DOCS\26039728.6 





 






   such Notes Custodian or DTC or any such nominee to a successor of DTC or a Notes Custodian or a  nominee thereof.        All Global Notes will be exchanged by the Issuer for Definitive Registered Notes:              (1)   if DTC notifies the Issuer that it is unwilling or unable to continue to act as  depositary and a successor depositary is not appointed by the Issuer within 120 days;              (2)   if DTC so requests following an Event of Default under this Indenture; or              (3)   if  the  owner  of  a  Book-Entry  Interest  requests  such  exchange  in  writing  delivered through DTC, following an Event of Default under this Indenture; provided that in no event  shall the Regulation S Temporary Global Note be exchanged by the Issuer for Definitive Notes prior to  (A)  the  expiration  of  the  Restricted  Period  and  (B)  the  receipt  by  the  Registrar  of  any  certificates  required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act.        Upon the occurrence of any of the preceding events in clauses (1) through (3) above, the Issuer  shall issue Definitive Registered Notes registered in the name or names and issued in any approved  denominations, as requested by or on behalf of DTC (in accordance with their respective customary  procedures and based upon directions received from participants reflecting the beneficial ownership of  Book-Entry Interests), to the Trustee and the Registrar, and such transfer or exchange shall be recorded  in the Register.        Global  Notes  also  may  be  exchanged  or  replaced,  in  whole  or  in  part,  as  provided  in  Section 2.07 and Section 2.10.  A Global Note may not be exchanged for another Note other than as  provided  in  this  Section 2.06(a). Book-Entry  Interests  in  a  Global  Note  may  be transferred  and  exchanged as provided in Section 2.06(b) or (c).        (b)   General Provisions Applicable to Transfer and Exchange of Book-Entry Interests in the  Global Notes.        The transfer and exchange of Book-Entry Interests shall be effected through DTC in accordance  with the provisions of this Indenture and the Applicable Procedures. In connection with all transfers  and exchanges of Book-Entry Interests (other than transfers of Book-Entry Interests in connection with  which the transferee takes delivery thereof in the form of a Book-Entry Interest in the same Global  Note), the Transfer Agent (copied to the Trustee) must receive: (i) a written order from a Participant or  an Indirect Participant given to DTC in accordance with the Applicable Procedures directing DTC to  debit from the transferor a Book-Entry Interest in an amount equal to the Book- Entry Interest to be  transferred or exchanged; (ii) a written order from a Participant or an Indirect Participant given to DTC  in accordance with the Applicable Procedures directing DTC to credit or cause to be credited a Book- Entry Interest in another Global Note in an amount equal to the Book- Entry Interest to be transferred  or exchanged; and  (iii) instructions  given  in accordance with the  Applicable  Procedures  containing  information regarding the Participant account to be credited or debited with such increase or decrease,  if applicable.        In connection with a transfer or exchange of a Book-Entry Interest for a Definitive Registered  Note, the Transfer Agent (copied to the Trustee and the Registrar) must receive: (i) a written order from  a Participant or an Indirect Participant given to DTC in accordance with the Applicable Procedures  directing DTC to debit from the transferor a Book-Entry Interest in an amount equal to the Book-Entry  Interest to be transferred or exchanged; (ii) a written order from a Participant directing the Registrar to  cause to be issued a Definitive Registered Note in an amount equal to the Book Entry Interest to be  transferred or exchanged; and (iii) instructions containing information regarding the Person in whose  name such Definitive Registered Note shall be registered to effect the transfer or exchange referred to  above.                                        55  EU-DOCS\26039728.6 





 






        In connection with any transfer or exchange of Definitive Registered Notes, the Holder of such  Notes  shall  present  or  surrender to  the  Registrar the  Definitive  Registered  Notes  duly  endorsed  or  accompanied by a written instruction of transfer in a form satisfactory to the Registrar duly executed  by such Holder or by its attorney, duly authorized in writing. In addition, in connection with a transfer  or exchange of a Definitive Registered Note for a Book-Entry Interest, the Transfer Agent (copied to  the Trustee) must receive a written order directing DTC to credit the account of the transferee in an  amount equal to the Book-Entry Interest to be transferred or exchanged.        Upon satisfaction of all of the requirements for transfer or exchange of Book-Entry Interests in  Global Notes (other than transfers of Book-Entry Interests in connection with which the transferee takes  delivery  thereof  in  the  form  of  a  Book-Entry  Interest  in  the  same  Global  Note)  contained  in  this  Indenture, the Transfer Agent (copied to the Trustee or the Registrar), as specified in this Section 2.06,  shall endorse the Global Note(s) with any increase or decrease and instruct DTC to reflect such increase  or decrease in its systems.        Transfers of Book-Entry Interests shall be subject to restrictions on transfer comparable to those  set forth herein to the extent required by the Securities Act. Transfers and exchanges of Book- Entry  Interests  for  Book-Entry  Interests  also  shall  require  compliance  with  either  subparagraph (b)(1)  or  (b)(2) below, as applicable, as well as subparagraph (b)(3) below, if applicable:              (1)   Transfer of Book-Entry Interests in the Same Global Note. Book-Entry Interests  will be limited to persons that have accounts with DTC or persons that may hold interests through such  participants. Book-Entry Interests in a Global Note may be transferred to Persons who take delivery  thereof in the form of a Book-Entry Interest in a Global Note in accordance with the transfer restrictions  set  forth  in  the  Private  Placement  Legend; provided,  however,  that  prior  to  the  expiration  of  the  Restricted Period, Book-Entry Interests in the Regulation S Temporary Global Note will be limited to  persons who hold interests in an Euroclear or Clearstream account through DTC, and any sale or transfer  of such interest to U.S. persons shall not be permitted during the Restricted Period unless such resale  or transfer is made pursuant to Rule 144A. No written orders or instructions shall be required to be  delivered to the Trustee to effect the transfers described in this Section 2.06(b)(1).              (2)   All Other Transfers and Exchanges of Book-Entry Interests in Global Notes. A  Holder may transfer or exchange a Book-Entry Interest in Global Notes in a transaction not subject to  Section 2.06(b)(1) above only if the Trustee and the Registrar or the Transfer Agent (copied to the  Trustee) receives either:                    (A)   both:                          (i)   a  written  order  from  a  Participant  or  an  Indirect  Participant                   given to DTC in accordance with the Applicable Procedures directing DTC to                   credit or cause to be credited a Book-Entry Interest in another Global Note in                   an amount equal to the Book-Entry Interest to be transferred or exchanged; and                          (ii)  instructions given by DTC in accordance with the Applicable                   Procedures containing information regarding the Participant’s account to be                   credited with such increase; or                    (B)   both:                          (i)   a  written  order  from  a  Participant  or  an  Indirect  Participant                   given to DTC in accordance with the Applicable Procedures directing DTC to                   cause to be issued a Definitive Registered Note in an amount equal to the Book-                  Entry Interest to be transferred or exchanged; and                          (ii)  instructions  given  by  DTC  to  the  Registrar  containing                   information  specifying  the  identity  of  the  Person  in  whose  name  such                                       56  EU-DOCS\26039728.6 





 






                    Definitive Registered Note shall be registered to effect the transfer or exchange                   referred to in (1) above, the principal amount of such securities and the ISIN,                   Common  Code,  CUSIP  or  other  similar  number  identifying  the  Notes;                   provided that in no event shall Definitive Notes be issued upon the transfer or                   exchange of beneficial interests in the Regulation S Temporary Global Note                   prior to (A) the expiration of the Restricted Period and (B) the receipt by the                   Registrar of any certificates required pursuant to Rule 903 under the Securities                   Act,              provided that any such transfer or exchange is made in accordance with the transfer             restrictions set forth in the Private Placement Legend.              (3)   Transfer  of  Book-Entry  Interests  to  Another  Global  Note. A Book-Entry  Interest in any Global Note may be transferred to a Person who takes delivery thereof in the form of a  Book-Entry  Interest  in  another  Global  Note  if  the  transfer  complies  with  the  requirements  of  Section 2.06(b)(2) above and the Registrar receives the following:                    (A)   if the transferee will take delivery in the form of a Book-Entry Interest             in a Rule 144A Global Note, then the transferor must deliver a certificate in the form             of Exhibit B hereto, including the certifications in item (1) thereof; and                    (B)   if the transferee will take delivery in the form of a Book-Entry Interest             in a Regulation S Temporary Global Note or the Regulation S Permanent Global Note,             then the transferor must deliver a certificate in the form of Exhibit B hereto, including             the certifications in item (2) thereof.        (c)   Transfer or Exchange of Book-Entry Interests in Global Notes for Definitive Registered  Notes.        If any holder of a Book-Entry Interest in a Global Note proposes to exchange such Book- Entry  Interest for a Definitive Registered Note or to transfer such Book-Entry Interest to a Person who takes  delivery thereof in the form of a Definitive Registered Note, then, upon receipt by the Trustee and the  Registrar of the following documentation:              (1)   in the case of a transfer on or before the expiration of the Restricted Period by  a holder of a Book-Entry Interest in a Regulation S Global Note, the Trustee shall have received a  certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;              (2)   in the case of an exchange by a holder of a Book-Entry Interest in a Global  Note of such Book-Entry Interest for a Definitive Registered Note, the Trustee shall have received a  certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)  thereof;              (3)   in the case of a transfer after the expiration of the Restricted Period by a holder  of a Book-Entry Interest in a Regulation S Global Note, the transfer complies with Section 2.06(b);              (4)   in the case of a transfer by a holder of a Book-Entry Interest in a Rule 144A  Global Note to a QIB in reliance on Rule 144A, the Trustee shall have received a certificate to the effect  set forth in Exhibit B hereto, including the certifications in item (1) thereof;              (5)   in the case of a transfer by a holder of a Book-Entry Interest in a Rule 144A  Global Note in reliance on Regulation S, the Trustee shall have received a certificate to the effect set  forth in Exhibit B hereto, including the certifications in item (2) thereof; or                                        57  EU-DOCS\26039728.6 





 






              (6)   in the case of a transfer by a holder of a Book-Entry Interest in a Rule 144A  Global Note in reliance on Rule 144, the Trustee shall have received a certificate to the effect set forth  in Exhibit B hereto, including the certifications in item (3) thereof,   the Paying Agent or Registrar shall cause the aggregate principal amount of the applicable Global Note  to be reduced accordingly pursuant to Section 2.06(h), and the Issuer shall execute and the Trustee or  its Authenticating Agent shall authenticate and deliver to the Person designated in the instructions a  Definitive Registered Note in the appropriate principal amount. Any Definitive Registered Note issued  in exchange for, or upon transfer of, a Book-Entry Interest in a Global Note pursuant to this clause (c)  shall be registered in such name or names and in such authorized denomination or denominations as the  holder of such Book-Entry Interest shall instruct the Registrar through instructions from DTC and the  Participant or Indirect Participant. The Registrar shall deliver (or cause to be delivered) such Definitive  Registered Notes to the Persons in whose names such Notes are so registered. Any Definitive Registered  Note issued in exchange for a Book-Entry Interest in a Global Note pursuant to this clause (c) shall bear  the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.        (d)   Transfer and Exchange of Definitive Registered Notes for Book-Entry Interests in the  Global Notes. If any Holder of a Definitive Registered Note proposes to exchange such Note for a  Book-Entry Interest in a Global Note or to transfer such Definitive Registered Notes to a Person who  takes delivery thereof in the form of a Book-Entry Interest in a Global Note, then, upon receipt by the  Trustee, the Transfer Agent and the Registrar of the following documentation:              (1)   if the Holder of such Definitive Registered Note proposes to exchange such  Note for a Book-Entry Interest in a Global Note, a certificate from such Holder in the form of Exhibit C  hereto, including the certifications in item (2) thereof;              (2)   if such Definitive Registered Note is being transferred to a QIB in accordance  with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in  item (1) thereof;              (3)   if  such  Definitive  Registered  Note  is  being  transferred  in  reliance  on  Regulation S  or  Rule 144,  a  certificate  to  the  effect  set  forth  in Exhibit B hereto,  including  the  certifications in items (2) or (3) thereof, as applicable;              (4)   if such Definitive Registered Note is being transferred to the Issuer or any of  its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in  item (3) thereof; and   the Registrar will cancel the Definitive Registered Note and record such exchange or transfer in the  Register, and the Registrar will increase or cause to be increased the aggregate principal amount of, in  the case of clause (1) above, the appropriate Global Note, in the case of clause (2) above, the appropriate  Rule 144A Global Note, in the case of clause (3) above, the appropriate Global Note, and in the case of  clause (4) above, the appropriate Global Note.        (e)   Transfer and Exchange of Definitive Registered Notes for Definitive Registered Notes.        Definitive Registered Notes may be transferred or exchanged in whole or in part, in minimum  denominations of $200,000 in principal amount and integral multiples of $1,000 in excess thereof to  persons who take delivery thereof in the form of Definitive Registered Notes in accordance with this  clause (e). Upon request by a Holder of Definitive Registered Notes and such Holder’s compliance with  the provisions of this clause (e), the Transfer Agent or the Registrar will register the transfer or exchange  of Definitive Registered Notes of which registration the Issuer will be informed of by the Transfer  Agent  or  the  Registrar  (as  the  case  may  be)  upon  request. Prior  to  such  registration  of  transfer  or  exchange, the requesting Holder must present or surrender to the Transfer Agent or the Registrar the  Definitive Registered Notes duly endorsed and accompanied by a written instruction of transfer in a  form satisfactory to the Transfer Agent or the Registrar duly executed by such Holder or its attorney,                                       58  EU-DOCS\26039728.6 





 






   duly authorized to execute the same in writing. In the event that the Holder of such Definitive Registered  Notes  does  not  transfer  the  entire  principal  amount  of  Notes  represented  by  any  such  Definitive  Registered Note, the Transfer Agent or the Registrar will cancel or cause to be canceled such Definitive  Registered Note and the Issuer (who has been informed of such cancellation) shall execute and the  Trustee or the Authenticating Agent, upon receipt of an Authentication Order, shall authenticate and  deliver  to  the  requesting  Holder  and  any  transferee  Definitive  Registered  Notes  in  the  appropriate  principal  amounts. In  addition,  the  requesting  Holder  shall provide  any  additional  certifications,  documents  and  information,  as  applicable,  required  pursuant  to  the  following  provisions  of  this  clause (e).        Any Definitive Registered Note may be transferred to and registered in the name of Persons  who take  delivery thereof in the form of a  Definitive Registered Note  if the Registrar receives the  following:              (1)   if the transfer will be made pursuant to Rule 144A, then the transferor must  deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and              (2)   if the transfer will be made in reliance on Regulation S, then the transferor must  deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.        (f)   Beneficial  Interests  in  Regulation  S  Temporary  Global  Note  to  Definitive  Notes.  Notwithstanding Section 2.06(c)(1)(A) and Section 2.06(c)(1)(C) hereof, a beneficial interest in the  Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred to a  Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the  Restricted Period and (B) the receipt by the Registrar of any certificates required  pursuant to Rule  903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer pursuant to an exemption from  the registration requirements of the Securities Act other than Rule 903 or Rule 904.        (g)   Legend.              (1)   Except as permitted by the following paragraphs (2), (3) or (4), each certificate  evidencing the Global Notes and the Definitive Registered Notes (and all Notes issued in exchange  therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined  term in the legend being defined as such for purposes of the legend only):   THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS  AMENDED  (THE “SECURITIES  ACT”),  OR  THE  SECURITIES  LAWS  OF  ANY  STATE  OR  OTHER  JURISDICTION.   NEITHER  THIS  SECURITY  NOR  ANY  INTEREST  OR  PARTICIPATION  HEREIN  MAY  BE  REOFFERED,  SOLD,  ASSIGNED,  TRANSFERRED,  PLEDGED,  ENCUMBERED  OR  OTHERWISE  DISPOSED  OF  IN  THE  ABSENCE  OF  SUCH  REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT  TO,  SUCH  REGISTRATION. THE  HOLDER  OF  THIS  SECURITY,  BY  ITS  ACCEPTANCE  HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT  FOR  WHICH  IT  HAS  PURCHASED  SECURITIES,  TO  OFFER,  SELL  OR  OTHERWISE  TRANSFER  SUCH  SECURITY,  PRIOR  TO  THE  DATE  (THE “RESALE  RESTRICTION  TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER  THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ISSUE DATE OF THE ORIGINAL  ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH THE ISSUER  OR  ANY  AFFILIATE  OF  THE  ISSUER  WAS  THE  OWNER  OF  THIS  SECURITY  (OR  ANY  PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS  AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE  OF  THE  ISSUANCE  OF  ANY  ADDITIONAL  NOTES  AND  THE  DATE  ON  WHICH  THIS  SECURITY  (OR  ANY  PREDECESSOR  OF  SUCH  SECURITY)  WAS  FIRST  OFFERED  TO  PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN  RELIANCE  ON  REGULATION S],  ONLY  (A) TO  THE  COMPANY  OR  ANY  SUBSIDIARY  THEREOF,  (B) PURSUANT  TO  A  REGISTRATION  STATEMENT THAT  HAS  BEEN                                       59  EU-DOCS\26039728.6 





 






   DECLARED  EFFECTIVE  UNDER  THE  SECURITIES  ACT,  (C) FOR  SO  LONG  AS  THE  SECURITIES  ARE  ELIGIBLE  FOR  RESALE  PURSUANT  TO  RULE 144A  UNDER  THE  SECURITIES  ACT  (“RULE 144A”),  TO  A  PERSON  IT  REASONABLY  BELIEVES  IS  A  “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR  ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO  WHOM  NOTICE  IS  GIVEN  THAT  THE  TRANSFER  IS  BEING  MADE  IN  RELIANCE  ON  RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR  OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE  SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE  REGISTRATION  REQUIREMENTS  OF  THE  SECURITIES  ACT,  SUBJECT  TO  THE  COMPANY’S  AND  THE  TRUSTEE’S  RIGHT  PRIOR  TO  ANY  SUCH  OFFER,  SALE  OR  TRANSFER  PURSUANT  TO  CLAUSES (D) OR  (E) TO  REQUIRE  THE  DELIVERY  OF  AN  OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY  TO  EACH  OF  THEM. THIS  LEGEND  WILL  BE  REMOVED  UPON  THE  REQUEST  OF  THE  HOLDER  AFTER  THE  RESALE  RESTRICTION  TERMINATION  DATE. [IN  THE  CASE  OF  REGULATION S  NOTES:  BY  ITS  ACQUISITION  HEREOF,  THE  HOLDER  HEREOF  REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT  OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION  IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.   BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO  HAVE  REPRESENTED  AND  WARRANTED  THAT  (A) EITHER  (1) NO  PORTION  OF  THE  ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES  THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE  U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),  OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS  SUBJECT  TO  SECTION 4975  OF  THE  U.S. INTERNAL  REVENUE  CODE  OF 1986,  AS  AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL,  NON-U.S. OR  OTHER  LAWS  OR  REGULATIONS THAT  ARE  SIMILAR  TO  SUCH  PROVISIONS  OF  ERISA  OR  THE  CODE  (“SIMILAR  LAWS”),  OR  OF  AN  ENTITY  WHOSE  UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE     “PLAN ASSETS” OF ANY SUCH  PLAN,  ACCOUNT  OR  ARRANGEMENT  (EACH,  A  “PLAN”),  OR  (2)(X) THE  ACQUISITION  AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED  TRANSACTION  UNDER  SECTION 406  OF  ERISA  OR  SECTION 4975  OF  THE  CODE  OR  A  SIMILAR  VIOLATION  UNDER  ANY  APPLICABLE  SIMILAR  LAWS  AND  (Y) EACH  PURCHASER AND SUBSEQUENT TRANSFEREE THAT IS, OR IS ACQUIRING A NOTE OR  ANY  INTEREST  THEREIN  WITH  THE  ASSETS  OF, A PLAN  WILL  BE  DEEMED  TO  REPRESENT,  WARRANT  AND  ACKNOWLEDGE  AS  LONG  AS  IT  HOLDS  SUCH  INVESTMENT THAT A FIDUCIARY INDEPENDENT OF THE ISSUER, THE GUARANTORS,  THE  INITIAL  PURCHASERS  AND  THE  TRUSTEE,  AND  THEIR  RESPECTIVE  AFFILIATES  (THE “TRANSACTION PARTIES”) ACTING ON THE ERISA PLAN’S BEHALF IS AND AT ALL  TIMES WILL BE RESPONSIBLE FOR ITS DECISION TO INVEST IN AND HOLD THE NOTES  AS CONTEMPLATED HEREBY, AND NONE OF THE TRANSACTION PARTIES ARE ACTING,  OR WILL ACT, AS A FIDUCIARY TO ANY PLAN   WITH RESPECT TO THE DECISION TO  PURCHASE OR HOLD THE NOTES, AND (B) IT WILL NOT SELL OR OTHERWISE TRANSFER  SUCH  NOTES  OR  ANY  INTEREST  THEREIN  OTHERWISE  THAN  TO  A  PURCHASER  OR  TRANSFEREE  THAT  IS  DEEMED  TO  MAKE  THESE  SAME  REPRESENTATIONS  AND  WARRANTIES WITH RESPECT TO ITS PURCHASE AND ACQUISITION OF SUCH NOTE OR  ANY INTEREST THEREIN.   Each Global Note shall bear the following legend:   THIS  GLOBAL  NOTE  IS  HELD  BY  THE  NOTES  CUSTODIAN  (AS  DEFINED  IN  THE  INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT  OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON                                       60  EU-DOCS\26039728.6 





 






   UNDER  ANY  CIRCUMSTANCES  EXCEPT  THAT  (I) THIS  GLOBAL  NOTE  MAY  BE  TRANSFERRED  OR  EXCHANGED  IN  WHOLE  BUT  NOT  IN  PART  PURSUANT  TO  SECTION 2.06 OF  THE  INDENTURE,  (II) THE  TRUSTEE  MAY  MAKE  SUCH  NOTATIONS  HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, AND  (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION  PURSUANT TO SECTION 2.11 OF THE INDENTURE.   The following legend shall also be included, if applicable:   THIS  NOTE  HAS  BEEN  ISSUED  WITH  “ORIGINAL  ISSUE  DISCOUNT”  (WITHIN  THE  MEANING OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED).  UPON WRITTEN REQUEST, THE ISSUER WILL PROMPTLY MAKE AVAILABLE TO ANY  HOLDER  OF  THIS  NOTE  THE  FOLLOWING  INFORMATION:  (1)  THE  ISSUE  PRICE  AND  DATE OF THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE  AND  (3) THE  YIELD  TO  MATURITY  OF THE NOTE.  HOLDERS  SHOULD  CONTACT THE  ISSUER, C/O BIDFAIR MERGERIGHT INC., CORPORATION TRUST CENTER, 1209 ORANGE  STREET,  WILMINGTON,  NEW  CASTLE  COUNTY,  DELAWARE  19801,  UNITED  STATES,  ATTN:  DIRECTOR.   Each Definitive Registered Note shall bear the following additional legend:   IN  CONNECTION  WITH  ANY  TRANSFER,  THE  HOLDER  WILL  DELIVER  TO  THE  REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION  AS  SUCH  TRANSFER  AGENT  MAY  REASONABLY  REQUIRE  TO  CONFIRM  THAT  THE  TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.   Each Regulation S Temporary Global Note shall bear the following additional legend:   THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION  S UNDER THE U.S. SECURITIES ACT. NEITHER THIS TEMPORARY GLOBAL   NOTE NOR  ANY INTEREST HEREIN MAY BE OFFERED, SOLD, DELIVERED OR EXCHANGED FOR AN  INTEREST IN A PERMANENT GLOBAL NOTE OR OTHER NOTE EXCEPT UPON DELIVERY  OF THE CERTIFICATIONS SPECIFIED IN THE INDENTURE.              (2)   Upon any sale  or transfer of a Transfer Restricted Note that is  a Definitive  Registered Note, the Registrar shall permit the Holder thereof to exchange such Transfer Restricted  Note for a Definitive Registered Note that does not bear the legends set forth above and rescind any  restriction on the  transfer of such Transfer Restricted Note  if the  Holder certifies in writing to the  Transfer Agent and Registrar that its request for such exchange was made in reliance on Rule 144 (such  certification to be in the form set forth on the reverse of the Note).              (3)   Upon a sale or transfer after the expiration of the Restricted Period of any Note  acquired pursuant to Regulation S, all requirements that such Note bear the Private Placement Legend  shall cease to apply and the requirements requiring any such Note be issued in global form shall continue  to apply.              (4)   Any additional Notes sold in a registered offering under the Securities Act shall  not be required to bear the Private Placement Legend.        (h)   Cancellation  and/or  Adjustment  of  Global  Notes. At  such  time  as  all  Book-Entry  Interests in a particular Global Note have been exchanged for Definitive Registered Notes or a particular  Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global  Note will be returned to or retained and cancelled by the Registrar in accordance with Section 2.11. At  any time prior to such cancellation, if any Book-Entry Interest in a Global Note is exchanged for or  transferred to a Person who will take delivery thereof in the form of a Book-Entry Interest in another  Global Note or for Definitive Registered Notes, the principal amount of Notes represented by such                                       61  EU-DOCS\26039728.6 





 






   Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the  Registrar or the Notes Custodian, at the direction of the Trustee, to reflect such reduction; and if the  Book-Entry Interests is being exchanged for or transferred to a Person who will take delivery thereof in  the form of a Book-Entry Interests in another Global Note, such other Global Note will be increased  accordingly and an endorsement will be made on such Global Note by the Registrar or by the Notes  Custodian at the direction of the Trustee to reflect such increase.        (i)   General Provisions Relating to Transfers and Exchanges.              (1)   To permit registrations of transfers and exchanges, the Issuer will execute and  the Trustee or its Authenticating Agent will authenticate Global Notes and Definitive Registered Notes  upon receipt of an Authentication Order in accordance with Section 2.02 or at the Registrar’s request.              (2)   No service charge will be made by the Issuer or the Registrar to a Holder of a  Book-Entry Interest in a Global Note, a Holder of a Global Note or a Holder of a Definitive Registered  Note for any registration of transfer or exchange, but the Issuer and the Trustee may require payment  of a sum sufficient to cover any stamp duty, stamp duty reserve, documentary or other similar tax or  governmental charge that may be imposed in connection therewith (other than any such transfer taxes  or similar governmental charge payable upon exchange or transfer pursuant to Section 2.10, Section  3.06, Section 4.03, Section 4.08 and Section 9.04).              (3)   No Transfer Agent or Registrar will be required to register the transfer of or  exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any  Note being redeemed in part.              (4)   All Global Notes and Definitive Registered Notes issued upon any registration  of transfer or exchange of Global Notes or Definitive Registered Notes will be the valid obligations of  the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global  Notes or Definitive Registered Notes surrendered upon such registration of transfer or exchange.              (5)   Except  as  may  be  separately  agreed  by  the  Issuer,  the  Issuer  shall  not  be  required to register the transfer into its register kept at its registered office of any Definitive Registered  Notes: (A) for a period of 15 calendar days prior to any date fixed for the redemption of the Notes under  Section 3.03; (B) for a period of 15 calendar days immediately prior to the date fixed for selection of  Notes to be redeemed in part; (C) for a period of 15 calendar days prior to the record date with respect  to any interest payment date; or (D) which the Holder has tendered (and not withdrawn) for repurchase  in connection with a Change of Control Offer or an Asset Disposition Offer. Any such transfer will be  made without charge to the Holder, other than any taxes, duties and governmental charges payable in  connection with such transfer.              (6)   The Trustee, any Agent and the Issuer shall deem and treat the Person in whose  name any Note is registered in the register maintained by the Registrar as the absolute owner of such  Note for the purpose of receiving payment of principal of (and premium, if any) or interest on such  Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by  notice to the contrary.              (7)   All certifications, certificates and Opinions of Counsel required to be submitted  to the Issuer, the Trustee or the Registrar pursuant to this Section 2.06 to effect a registration of transfer  or exchange may be submitted initially by facsimile with originals to be delivered promptly thereafter  to the Trustee.        None of the Trustee or any Agent shall have any obligation or duty to monitor, determine or  inquire  as  to  compliance  with  any  restrictions  on  transfer  imposed  under  this  Indenture  or  under  applicable law with respect to any transfer of any interest in any Note (including any transfers between  or among Participants or beneficial owners of interests in any Definitive Registered Note or Global  Note) other than to require delivery of such certificates and other documentation or evidence as are                                       62  EU-DOCS\26039728.6 





 






   expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and  to examine the same to determine substantial compliance as to form with the express requirements  hereof.        None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial  owner in a Global Note, a Participant or other Person with respect to the accuracy of the records of the  Depositary or its nominee or of any Participant, with respect to any ownership interest in a Global Note  or with respect to the delivery to any Participant, beneficial owner or other Person (other than the  Depositary or its nominee) of any notice (including any notice of redemption) or the payment of any  amount (other than the Depositary or its nominee), under or with respect to such Global Notes. All  notices and communications to be given to the Holders and all payments to be made to Holders under  the Notes and this Indenture shall be given or made only to or upon the order of the registered holders  (which shall be the Depositary or its nominee in the case of the Global Note). The rights of beneficial  owners in the Global Note shall be exercised only through the Depositary subject to the applicable  procedures. The Trustee and the Agents shall be entitled to rely and shall be fully protected in relying  upon  information  furnished  by  the  Depositary  with  respect  to  its  members,  Participants  and  any  beneficial owners. The Trustee and the Agents shall be entitled to deal with the Depositary, and any  nominee thereof, that is the registered holder of any Global Note for all purposes of this Indenture  relating to such Global Note (including the payment of principal, premium, if any, and interest and  additional amounts, if any, and the giving of instructions or directions by or to the owner or holder of a  beneficial ownership interest in such Global Note) as the sole holder of such Global Note and shall have  no  obligations  to  the  beneficial  owners  thereof. None  of  the  Trustee  or  any  Agent  shall  have  any  responsibility or liability for any acts or omissions of the Depositary with respect to such Global Note  for the records of any such Depositary, including records in respect of beneficial ownership interests in  respect of any such Global Note, for any transactions between the Depositary and any Participant or  between or among the Depositary, any such Participant and/or any holder or owner of a beneficial  interest in such Global Note, or for any transfers of beneficial interests in any such Global Note.   Section 2.07 Replacement Notes.        If a mutilated Note is surrendered to the Registrar or if the Holder claims that the Note has been  lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee or the Authenticating Agent,  upon receipt of an Authentication Order, shall authenticate a replacement Note if the requirements of  Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) notifies the Issuer or  the Trustee within a reasonable time after such Holder has notice of such loss, destruction or wrongful  taking and the Registrar does not register a transfer prior to receiving such notification, (b) makes such  request to the Issuer or the Trustee prior to the Note being acquired by a protected purchaser as defined  in Section 8-303 of the Uniform Commercial Code (a “protected purchaser”) and (c) satisfies any other  reasonable  requirements  of  the Trustee. If  required  by  the  Trustee  or  the  Issuer,  such  Holder  shall  furnish an indemnity bond sufficient in the judgment of the Trustee and the Issuer to protect the Issuer,  the Trustee, the Authenticating Agent, Paying Agent and the Registrar from any loss that any of them  may suffer if a Note is replaced. The Issuer and the Trustee may charge the Holder for their expenses  in replacing a Note including, but not limited to, reasonable fees and expenses of counsel and any tax  that may be imposed with respect to the replacement of such Note. In the event any such mutilated, lost,  destroyed or wrongfully taken Note has become or is about to become due and payable, the Issuer in its  discretion may pay such Note instead of issuing a new Note in replacement thereof.        Every replacement Note is an additional obligation of the Issuer.        The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful) all  other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or  wrongfully taken Notes.   Section 2.08 Outstanding Notes.                                        63  EU-DOCS\26039728.6 





 






        Notes outstanding at any time are all Notes authenticated by the Trustee or the Authenticating  Agent except for those canceled by it pursuant to Section 2.11, those delivered to it for cancellation and  those described in this Section 2.08 as not outstanding. Subject to Section 12.04, a Note does not cease  to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note. If a Note is replaced  pursuant to Section 2.07, it ceases to be outstanding unless the Trustee and the Issuer receive proof  satisfactory to them that the replaced Note is held by a protected purchaser (as defined in Section 8-303  of the Uniform Commercial Code).        If  the  principal  amount  of  any  Note  is  considered  paid  under  Section 4.01,  it ceases  to  be  outstanding and interest on it ceases to accrue.        If the Paying Agent receives (or if the Issuer or a Subsidiary of the Issuer is acting as Paying  Agent and such Paying Agent segregates and holds in trust) in accordance with this Indenture, no later  than 10:00 a.m. (New York time) on the Business Day that is a redemption date or maturity date, money  sufficient to pay all principal and interest and premium, if any, payable on that date with respect to the  Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not  prohibited from paying such amount to the Holders on that date pursuant to the terms of this Indenture,  then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them  ceases to accrue.   Section 2.09 Treasury Notes.        The Issuer shall promptly notify the Trustee of any Notes owned by the Issuer or any Affiliate  of the Issuer.   Section 2.10 Temporary Notes.        In the event that Definitive Registered Notes are to be issued under the terms of this Indenture,  until such Definitive Registered Notes are ready for delivery, the Issuer may prepare and the Trustee or  the Authenticating Agent, upon receipt of an Authentication Order, shall authenticate temporary Notes.  Temporary  Notes  shall  be  substantially  in  the  form  of  Definitive  Registered  Notes  but  may  have  variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the  Issuer shall prepare and the Trustee or the Authenticating Agent, upon receipt of an Authentication  Order, shall authenticate Definitive Registered Notes and deliver them in exchange for temporary Notes  upon surrender of such temporary Notes at the office or agency of the Issuer, without charge to the  Holder.   Section 2.11 Cancellation.        The Issuer at any time may deliver Notes to the Registrar for cancellation. The Trustee and the  Paying Agent shall forward to the Registrar any Notes surrendered to them for registration of transfer,  exchange or payment. The Registrar (or an agent authorized by the Registrar) and no one else shall  cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation and shall  dispose of canceled Notes in accordance with its customary procedures or deliver canceled Notes to the  Issuer pursuant to written direction by an Officer of the Issuer. Upon the written request of the Issuer,  certification of the destruction of all canceled Notes shall be delivered to the Issuer. The Issuer may not  issue new Notes to replace Notes it has redeemed or delivered to the Registrar for cancellation. If the  Issuer shall acquire any of the Notes, such acquisition shall not operate as a redemption or satisfaction  of the Indebtedness represented by such Notes, unless and until the same are surrendered to the Registrar  for cancellation pursuant to this Section 2.11. Neither the Trustee nor the Authenticating Agent shall  authenticate Notes in place of canceled Notes other than pursuant to the terms of this Indenture.   Section 2.12 Defaulted Interest.        If the Issuer defaults in a payment of interest on the Notes, it will pay the defaulted interest in  any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons                                       64  EU-DOCS\26039728.6 





 






   who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and  in Section 4.01. The Issuer will notify the Trustee in writing of the amount of defaulted interest proposed  to be paid on each Note and the date of the proposed payment. The Issuer will fix or cause to be fixed  each such special record date and payment date; provided that no such special record date may be less  than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the  special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at  the  expense  of  the  Issuer)  will  mail  or cause  to  be  mailed  to  the  Holders  in  accordance  with  Section 12.01 a notice that states the special record date, the related payment date and the amount of  such interest to be paid.   Section 2.13 Further Issues.        Subject to compliance with Section 4.04, the Issuer may from time to time issue Additional  Notes ranking pari passu with the Initial Notes and with the same terms as to status, redemption and  otherwise as such Notes (save for payment of interest accruing prior to the issue date of such Additional  Notes or for the first payment of interest following the issue date of such Additional Notes). The Initial  Notes and, if issued, any Additional Notes will be treated as a single class for all purposes under this  Indenture, including, without limitation, waivers, amendments,  redemptions, and offers to purchase  except as otherwise specified with respect to the Notes. Whenever it is proposed to create and issue any  Additional Notes, the Issuer shall give to the Trustee not less than three Business Days’ notice in writing  of its intention to do so, stating the amount of Additional Notes proposed to be created and issued.   Section 2.14 Common Codes, ISIN and CUSIP Numbers.        The Issuer in issuing the Notes may use Common Codes, ISIN and CUSIP numbers (if then  generally in use) and, if so, the Issuer shall use Common Codes, ISIN and CUSIP numbers in notices  of redemption as a convenience to Holders; provided, however, that any such notice may state that no  representation  is  made  as  to  the  correctness  of  such  numbers  either  as  printed  on  the  Notes  or  as  contained in any notice of a redemption and that reliance may be placed only on the other identification  numbers  printed  on  the  Notes,  and  any  such redemption  shall  not  be  affected  by  any  defect  in  or  omission of such numbers. In order for any Initial Notes and/or Additional Notes to have the same  CUSIP number and ISIN as the Notes, such Initial Notes and/or Additional Notes must be fungible with  the Notes for U.S. federal income tax purposes. If any Initial Notes and/or Additional Notes are not  fungible with the Notes, such Initial Notes and/or Additional Notes shall have a different ISIN and/or  Common Code number (or other applicable identifying number). The Issuer will promptly notify the  Trustee and the Paying Agent, in writing, of any change in the Common Code, ISIN or CUSIP numbers.   Section 2.15 Currency Indemnity.        The sole currency of account and payment for all sums payable by the Issuer and the Guarantors  under or in connection with the Notes and Note Guarantees thereof is U.S. dollars, including damages.  Any amount received or recovered in a currency other than U.S. dollars, whether as a result of, or the  enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of  the Issuer, any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed  to be due to it from the Issuer or a Guarantor will only constitute a discharge to the Issuer or such  Guarantor, as applicable, to the extent of the U.S. dollar, as the case may be, which the recipient is able  to purchase with the amount so received or recovered in that other currency on the date of that receipt  or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is  practicable to do so).        If that U.S. dollar amount is less than the U.S. dollar amount expressed to be due to the recipient  or the Trustee under any Note, the Issuer and the Guarantors will indemnify them against any loss  sustained by such recipient or the Trustee as a result. In any event, the Issuer and the Guarantors will  indemnify the recipient or the Trustee on a joint or several basis against the cost of making any such  purchase. For the purposes of this currency indemnity provision, it will be prima facie evidence of the  matter stated therein for the Holder of a Note or the Trustee to certify in a manner reasonably satisfactory                                       65  EU-DOCS\26039728.6 





 






   to  the  Issuer  (indicating  the  sources  of  information  used)  the  loss  it  Incurred  in  making  any  such  purchase. These indemnities constitute a separate and independent obligation from the Issuer’s and the  Guarantors’ other obligations, will give rise to a separate and independent cause of action, will apply  irrespective of any waiver granted by any Holder of a Note or the Trustee (other than a waiver of the  indemnities set out herein) and will continue in full force and effect despite any other judgment, order,  claim or proof for a liquidated amount in respect of any sum due under any Note, any Note Guarantee  or to the Trustee.   Section 2.16 Deposit of Moneys.        No later than 10:00 a.m. (New York time) on the Business Day that is an interest payment date,  the maturity date of the Notes and each payment date relating to an Asset Disposition Offer or a Change  of Control Offer, and on the Business Day immediately following any acceleration of the Notes pursuant  to Section 6.02, the Issuer shall deposit with the Paying Agent, in immediately available funds, money  in dollars sufficient to make cash payments, if any, due on such day or date, as the case may be. Subject  to actual receipt of such funds as provided by this Section 2.16 by the designated Paying Agent, such  Paying Agent shall remit such payment in a timely manner to the Holders on such day or date, as the  case may be, to the Persons and in the manner set forth in paragraph 2 of the Notes; provided, however,  that no Paying Agent shall be obliged to make a payment until it has received funds sufficient to make  such payment. The Issuer shall promptly notify the Trustee and the Paying Agent of its failure to so act.   Section 2.17 Agents.        (a)   The  rights,  powers,  duties  and  obligations  and  actions  of  each  Agent  under  this  Indenture are several and not joint or joint and several, and the Agents shall only be obliged to perform  those duties expressly set out in this Indenture and shall have no implied duties.        (b)   The Issuer and the Agents acknowledge and agree that in the event of a Default or Event  of Default, the Trustee may, by notice in writing to the Issuer and the Agents, require that the Agents  act as agents of, and take instructions exclusively from, the Trustee. Until they have received such  written notice from the Trustee, the Agents shall act solely as agents of the Issuer and need have no  concern for the interests of the Holders.                                    ARTICLE 3                                 REDEMPTION   Section 3.01 Notices to Trustee.        If the Issuer elects to redeem Notes pursuant to Section 3.07, it shall notify the Trustee and the  Paying Agent of the redemption date and the principal amount of Notes to be redeemed and the section  of the Note pursuant to which the redemption will occur.        Unless otherwise specified, the Issuer shall give each notice in writing to the Trustee and the  Paying Agent in writing provided for in this Article 3 at least 10 days, but not more than 60 days, before  the redemption date unless the Trustee or the Paying Agent (as the case may be) consents to a shorter  period in its sole discretion. In the case of a redemption pursuant to Section 3.07, prior to the publication  or, where relevant, mailing of any notice of redemption of the Notes pursuant to Section 3.03, the Issuer  will deliver such notice along with an Officer’s Certificate from the Issuer to the Trustee to the effect  that such redemption will comply with the  conditions  herein. The Trustee will accept and shall be  entitled to rely conclusively and without further inquiry on such Officer’s Certificate and Opinion of  Counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described  in Section 3.07 in which event it will be conclusive and binding on the Holders.   Section 3.02 Selection of Notes to Be Redeemed or Repurchased.                                        66  EU-DOCS\26039728.6 





 






        If less than all of the Notes are to be redeemed at any time, such Notes for redemption will be  selected in accordance with the procedures of DTC, or if DTC prescribes no method of selection, then  the Issuer will instruct the Trustee or the Registrar to select the Notes for redemption in compliance  with the requirements of the principal securities exchange, if any, on which the Notes are listed, as  certified to the Trustee or the Registrar or if the Notes are not so listed or such exchange prescribes no  method of selection, then based on a method that most nearly approximates a pro rata selection or by  lot; provided,  however,  that  no  Note  of  $200,000  in  aggregate  principal  amount  or  less  shall  be  redeemed in part and only Notes in integral multiples of $1,000 will be redeemed. Neither the Trustee  nor  the  Registrar  will  be  liable  for  any  selections  made  by  it  or  DTC  in  accordance  with  this  Section 3.02.   Section 3.03 Notice of Redemption.        (a)   Other  than  as provided  in  Section 3.03(b),  not  less  than 10 days  but  not  more  than 60 days before a date for redemption of Notes, the Issuer shall transmit a notice of redemption in  accordance with Section 12.01. If such Notes are in global form, notice of redemption will be delivered  to DTC for communication to the entitled account holders.        The notice shall identify the Notes to be redeemed and shall state:              (1)   the redemption date;              (2)   the  redemption price,  and, if applicable,  the  appropriate  calculation of such  redemption price and the amount of accrued interest to the redemption date;              (3)   the name and address of the Paying Agent;              (4)   that Notes called for redemption must be surrendered to the Paying Agent to  collect the redemption price;              (5)   that,  unless  the  Issuer  defaults  in  making  such  redemption  payment  or  the  Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest  on Notes (or portion thereof) called for redemption ceases to accrue on and after the redemption date;              (6)   the Common Codes, ISIN or CUSIP number, as applicable, if any, printed on  the Notes being redeemed;              (7)   the paragraph of the Notes or section of this Indenture pursuant to which the  Notes are being redeemed;              (8)   that no representation is made as to the correctness or accuracy of the Common  Codes, ISIN or CUSIP number, as applicable, if any, listed in such notice or printed on the Notes; and              (9)   if any Notes of a  series are  to be redeemed  in part only, the portion of the  principal amount thereof to be redeemed.        (b)   At the Issuer’s request and expense, the Trustee or the Paying Agent shall give the  notice of redemption in the Issuer’s name. In such event, the Issuer shall provide the Trustee and the  Paying Agent at least two Business Days  prior to the  date  on which  notice of redemption is to be  delivered to Holders (unless a shorter period of time is acceptable to the Trustee and the Paying Agent),  an  Officer’s  Certificate  requesting  the  Trustee  or  the  Paying  Agent  to  give  such  notice  and  also  containing the information required to be contained in such notice pursuant to this Section 3.03.   Section 3.04 Effect of Notice of Redemption.        Once notice of redemption is delivered, Notes called for redemption become due and payable,  on the redemption date and at the redemption price stated in the notice, plus accrued interest, if any, to,                                       67  EU-DOCS\26039728.6 





 






   but not including, the redemption date; provided, however, that any redemption notice given in respect  of the redemption referred to in Section 3.07 may, at the Issuer’s discretion, be subject to the satisfaction  of one or more conditions precedent as set forth in Section 3.07(d). Upon surrender to the Paying Agent,  the Notes shall be paid at the redemption price stated in the notice, plus accrued interest, if any, to, but  not including, the redemption date; provided, however, that if the redemption date is after a regular  record date and on or prior to the interest payment date, the accrued interest shall be payable to the  Holder of the redeemed Notes registered on the relevant record date. Failure to give notice or any defect  in the notice to any Holder shall not affect the validity of the notice to any other Holder.   Section 3.05 Deposit of Redemption Price.        No later than 10:00 a.m. (New York time) on the Business Day that is a redemption date, the  Issuer shall deposit with the Paying Agent (or, if the Issuer or a Restricted Subsidiary of the Issuer is  the Paying Agent, shall segregate and hold in trust) money sufficient to pay the redemption price of and  accrued interest on all Notes or portions thereof to be redeemed on that date other than Notes or portions  of Notes called for redemption that have been delivered by the Issuer to the Registrar for cancellation.  On and after the redemption date, interest shall cease to accrue on Notes or portions thereof called for  redemption  so  long  as  the  Issuer  has  deposited  with  the  Paying  Agent  funds  sufficient  to  pay  the  principal of, plus accrued and unpaid interest, if any, on, the Notes to be redeemed, unless the Paying  Agent  is  prohibited  from  making  such  payment  pursuant  to  the  terms  of  this  Indenture. For  the  avoidance of doubt, the Paying Agent and the Trustee shall be held harmless and have no liability or  obligation with respect to payments or disbursements to be made by the Paying Agent and Trustee  (i) for which payment instructions are not made or that are not otherwise deposited by the respective  times set forth in this Section 3.05 and (ii) until they have confirmed receipt of funds sufficient to make  the relevant payment.   Section 3.06 Notes Redeemed in Part.        Subject to the terms hereof, upon surrender of a Note that is redeemed in part, (i) in the case of  a  Definitive  Registered  Note,  a  new  Definitive  Registered  Note  in  principal  amount  equal  to  the  unredeemed portion of any Definitive Registered Note redeemed in part will be issued in the name of  the Holder thereof upon cancellation of the original Definitive Registered Note and (ii) in the case of a  Global Note, an appropriate notation will be made on such Note to decrease the principal amount thereof  to an amount equal to the unredeemed portion thereof.   Section 3.07 Optional Redemption.        (a)   The Issuer may redeem all or part of the Notes pursuant to the optional redemption  provisions of paragraph 5 of each Global Note or Definitive Registered Note.          (b)   If a redemption date is not a Business Day, the Holders will not be entitled to payment  of the amount due until the next succeeding Business Day, and will not be entitled to any further interest  or other  payment as a result of such delay.         (c)   Unless the Issuer defaults in the payment of the redemption price, interest will cease to  accrue on the Notes or the portion thereof called for redemption on the applicable redemption date.        (d)   Any redemption notice given in respect of the redemption of the Notes (including upon  an Equity Offering or in connection with a transaction (or series of related transactions) or an event that  constitutes a Change of Control) may, at the Issuer’s discretion, be subject to the satisfaction of one or  more conditions precedent, including, but not limited to, the completion or occurrence of the relevant  transaction, as the case may be. In addition, if such redemption or purchase is subject to satisfaction of  one or more conditions precedent, such notice shall describe each such condition, and if applicable,  shall state that, in the Issuer’s discretion, the redemption date may be delayed until such time (including  more  than 60 days  after  the  date  the  notice  of  redemption  was  mailed  or  delivered,  including  by  electronic transmission) as any or all such conditions shall be satisfied or waived, or such redemption                                       68  EU-DOCS\26039728.6 





 






   or purchase may not occur and such notice may be rescinded in the event that any or all such conditions  shall not have been satisfied or waived by the redemption date, or by the redemption date as so delayed,  or such notice may be rescinded at any time in the Issuer’s discretion if in the good faith judgment of  the Issuer any or all of such conditions will not be satisfied. In addition, the Issuer may provide in such  notice that payment of the redemption price and performance of the Issuer’s obligations with respect to  such redemption may be performed by another Person. In no event shall the Trustee be responsible for  monitoring, or charged with knowledge of, the maximum aggregate amount of the Notes eligible under  this Indenture to be redeemed.        (e)   Any redemption pursuant to this Section 3.07 shall be made pursuant to Section 3.01  through Section 3.06.        (f)   If any Notes are listed on an exchange, and the rules of the exchange so require, the  Issuer  will  notify  the  exchange  of  any  such  redemption  and  the  principal  amount  of  such  Notes  outstanding following any partial redemption of such Notes. In no event will the Trustee be responsible  for monitoring, or charged with knowledge of, the maximum aggregate amount of Notes eligible under  this Indenture to be redeemed.   Section 3.08 Tender Offer Redemption.        In connection with any tender offer or other offer to purchase for all of the Notes, if Holders of  not less than 90% of the aggregate principal amount of the then outstanding Notes validly tender and  do not validly withdraw such Notes in such tender offer and the Issuer, or any third party making such  tender offer in lieu of the Issuer, purchases all of the Notes validly tendered and not validly withdrawn  by such Holders, all of the Holders of the Notes will be deemed to have consented to such tender or  other offer and, accordingly, the Issuer or such third party will have the right, upon not less than 10 nor  more than 60 days’ notice following such purchase date, to redeem all Notes that remain outstanding  following such purchase at a price equal to the price paid to each other Holder in such tender offer  (other than any incentive payment for early tenders), plus, to the extent not included in the tender offer  payment, accrued and unpaid interest, if any, thereon, to, but not including, the repurchase date (subject  to the right of Holders of record on the relevant record date to receive interest due on the relevant interest  payment date). In determining whether the Holders of at least 90% of the aggregate principal amount  of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a tender offer  or other offer to purchase for all of the Notes, Notes owned by an Affiliate of the Issuer or by funds  controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be deemed to be  outstanding for the purposes of any such tender offer or other offer, as applicable.   Section 3.09 Mandatory Redemption.        Except  as  set  forth  in  Section 3.10 below,  the  Issuer  is  not  required  to  make  mandatory  redemption payments or sinking fund payments with respect to the Notes.   Section 3.10 Special Mandatory Redemption; Escrow of Proceeds.        (a)   If  the  Completion  Date  occurs  on  or  after  October  4,  2019,  the  Issuer  will,  on  or  promptly  after  October  4,  2019,  deposit  the  gross  proceeds  of  the  offering of  Initial  Notes  into  a  segregated escrow account, pursuant to the terms of the Escrow Agreement to be entered into at that  time between the Initial Issuer, the Trustee and the Escrow Agent, and enter into a pledge agreement  over the escrow account for the benefit of the Holders.  The release of escrow proceeds will be subject  to the satisfaction of conditions that are substantially similar to the release conditions set out in the Loan  Escrow Documents (as defined in the New Credit Facilities Agreement).         (b)   In the event that (i) the Completion Date does not take place on or prior to the Longstop  Date; (ii) the Acquisition Agreement is terminated at any time prior to the Longstop Date; or (iii) the  occurrence of an Event of Default under Section 6.01(a)(6) with respect to the Initial Issuer on or prior  to the Longstop Date (the date of any such event being the “Special Termination Date”), the Initial                                       69  EU-DOCS\26039728.6 





 






   Issuer will redeem all of the  Notes  (the “Special Mandatory Redemption”) at a price (the “Special  Mandatory Redemption Price”) equal to 100% of the initial issue price of each Note, plus accrued but  unpaid interest from the Issue Date to (but not including) the Special Mandatory Redemption Date (as  defined below and subject to the right of Holders on the relevant record date to receive interest due on  the relevant interest payment date).        (c)   Notice of the Special Mandatory Redemption will be delivered by the Initial Issuer, no  later than one Business Day following the Special Termination Date, to the Trustee and to the Escrow  Agent, and will provide that the Notes shall be redeemed on a date that is no later than the fifth Business  Day after such notice is given by the Issuer in accordance with the terms of the Escrow Agreement (any  such date, a “Special Mandatory Redemption Date”).  On the Business Day immediately preceding the  Special Mandatory Redemption Date, the Trustee or the Escrow Agent (as applicable) shall pay to the  Paying Agent for payment to each holder of Notes to be redeemed the Special Mandatory Redemption  Price for such holder’s Notes.          (d)   In the event the Issuer has not delivered the notice to Holders of the Special Mandatory  Redemption in accordance with Section 3.10(c), the Trustee, upon the Issuer’s request, shall deliver  such notice on the second Business Day following the Special Termination Date to the Escrow Agent  and the Holders in the Issuer’s name and at the Issuer’s expense.          (e)   If any Notes are listed on an exchange, and the rules of the exchange so require, the  Issuer will notify the exchange of the occurrence of any such Special Mandatory Redemption and any  relevant details relating thereto.   Section 3.11 Redemption for Changes in Taxes.        (a)   The Issuer may redeem the Notes, in whole but not in part, at any time upon giving not  less than 30 nor more than 60 days’ prior notice to the Holders (which notice will be irrevocable and  given in accordance with Section 3.03 of this Indenture), at a redemption price equal to 100% of the  principal amount thereof, together with accrued and unpaid interest, if any, to the date fixed by the  Issuer for redemption (a “Tax Redemption Date”) and all Additional Amounts (if any) then due and that  will become due on the Tax Redemption Date as a result of the redemption or otherwise (subject to the  right of Holders on the relevant record date to receive interest due on an interest payment date that is  prior to the Tax Redemption Date and Additional Amounts (if any) in respect thereof), if on the next  date on which any amount would be payable in respect of the Notes, the Issuer or any Guarantor is or  would be required to pay Additional Amounts, and the Issuer or the relevant Guarantor (but, in the case  of a Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or  another Guarantor without the obligation to pay Additional Amounts) cannot avoid any such payment  obligation taking reasonable measures available (provided that changing the jurisdiction of the Issuer is  not a reasonable measure for purposes of this section, and that changing the jurisdiction of a paying  agent is a reasonable measure), as a result of:              (1)   any change  in, or amendment to, the  laws (or any regulations,  protocols  or  rulings promulgated thereunder) of the relevant Tax Jurisdiction affecting taxation which change or  amendment has not been publicly announced before and which becomes effective on or after the date  of the Offering Memorandum (or, if the relevant Tax Jurisdiction was not a Tax Jurisdiction on the  Issue Date, the date on which such Tax Jurisdiction became a Tax Jurisdiction under this Indenture); or               (2)   any change in, or amendment to, the existing official written position or the  introduction of a written official position regarding the application, administration or interpretation of  such  laws,  treaties,  regulations  or  rulings  (including  a  holding,  judgment  or  order  by  a  court  of  competent jurisdiction or a change in published administrative practice), which change or amendment  has not been publicly announced before and which becomes effective on or after the date of the Offering  Memorandum (or, if the relevant Tax Jurisdiction was not a Tax Jurisdiction on the Issue Date, the date  on which such Tax Jurisdiction became a Tax Jurisdiction under this Indenture).                                        70  EU-DOCS\26039728.6 





 






        (b)   The Issuer will not give any such notice of redemption earlier than 90 days prior to the  earliest date on which the Issuer or the relevant Guarantor would be obligated to make such payment or  withholding (if a payment in respect of the Notes or the Guarantees were then due) and unless at the  time such notice is given, the obligation to pay Additional Amounts remains in effect.  Prior to the  publication  or,  where  relevant,  mailing  of  any  notice  of  redemption  of  the  Notes  pursuant  to  the  foregoing, the Issuer will deliver the Trustee an Opinion of Counsel, the choice of such counsel to be  subject to the prior written approval of the Trustee (such approval not to be unreasonably withheld) to  the effect that there has been such change or amendment which would entitle the Issuer to redeem the  Notes hereunder and under this Indenture. In addition, before the Issuer publishes or mails notice of  redemption of the Notes as described above, it will deliver to the Trustee an Officer’s Certificate to the  effect that the obligation to pay Additional Amounts cannot be avoided by the Issuer or the relevant  Guarantor (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot  be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts) taking  reasonable measures available to it.         (c)   The delivery of such Officer’s Certificate and Opinion of Counsel to the Trustee shall  be sufficient evidence of the existence and satisfaction of the conditions precedent as described above,  in which event it will be conclusive and binding on the Holders.                                      ARTICLE 4                                  COVENANTS   Section 4.01 Payment of Notes.        The Issuer shall promptly pay the principal of and interest on the Notes on the dates and in the  manner provided in the Notes and in this Indenture. Principal and interest shall be considered paid on  the date due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture  money sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the  case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms  of this Indenture.   Section 4.02 [Reserved].   Section 4.03 Change of Control.        (a)   If a Change of Control occurs, subject to the terms of this Section 4.03, each Holder  will have the right to require the Issuer to repurchase all or any part (equal to $200,000 or an integral  multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101%  of the principal amount of the Notes, plus accrued and unpaid interest to the date of purchase (subject  to the right of Holders of record on the relevant record date to receive interest due on the relevant interest  payment date); provided, however, that the Issuer shall not be obliged to repurchase Notes as described  under this Section 4.03 in the event and to the extent that it has unconditionally exercised its right to  redeem all of the Notes pursuant to Section 3.07 or all conditions to such redemption have been satisfied  or waived. No such purchase in part shall reduce the principal amount at maturity of the Notes held by  any holder to below $200,000.        (b)   Unless  the  Issuer  has  unconditionally  exercised  its  right  to  redeem  all  the  Notes  pursuant to Section 3.07 or all conditions to such redemption have been satisfied or waived, no later  than the date that is 60 days after any Change of Control or, at the Issuer’s option, at any time prior to  a Change of Control following the public announcement thereof or if a definitive agreement is in place  for the Change of Control, the Issuer will send a notice (the “Change of Control Offer”) to each Holder  of any such Notes by mail or otherwise in accordance with the procedures set forth in this Indenture,  with a copy to the Trustee:              (1)   stating that a Change of Control has occurred or may occur and that such Holder  has the right to require the Issuer to purchase all or any part of such Holder’s Notes at a purchase price                                       71  EU-DOCS\26039728.6 





 






   in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest to, but  not including, the date of purchase (subject to the right of Holders of record on a record date to receive  interest on the relevant interest payment date) (the “Change of Control Payment”);              (2)   stating the repurchase date (which shall be no earlier than 10 days from the date  such notice is mailed nor later than the later of 60 days from the date such notice is mailed and 60 days  after the Change of Control) (the “Change of Control Payment Date”) and the record date;              (3)   stating that any Note accepted for payment pursuant to the Change of Control  Offer will cease to accrue interest after the Change of Control Payment Date unless the Change of  Control Payment is not paid, and that any Notes or part thereof not tendered will continue to accrue  interest;              (4)   describing  the  circumstances  and relevant  facts  regarding  the  transaction  or  transactions that constitute the Change of Control;              (5)   describing  the  procedures  determined  by  the  Issuer,  consistent  with  this  Indenture, that a Holder must follow in order to have its Notes repurchased;              (6)   if such notice is mailed prior to the occurrence of a Change of Control, stating  that the Change of Control Offer is conditional on the occurrence of such Change of Control; and              (7)   certain other procedures that a holder of Notes must follow to accept a Change  of Control Offer or to withdraw such acceptance.        (c)   The Issuer shall cause to be published the notice described above through the newswire  service of Bloomberg (or if Bloomberg does not then operate, any similar agency). In addition, if any  Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will notify the  exchange of the results of any Change of Control Offer.        (d)   On the Change of Control Payment Date, if the Change of Control shall have occurred,  the Issuer will, to the extent lawful:              (1)   accept for payment all Notes or portion thereof properly tendered pursuant to  the Change of Control Offer;              (2)   deposit  with  the  Paying  Agent  an  amount  equal  to  the  Change  of  Control  Payment in respect of all Notes so tendered;              (3)   deliver or cause to be delivered to the Trustee an Officer’s Certificate stating  the aggregate principal amount of Notes or portions of the Notes being purchased by the Issuer in the  Change of Control Offer;              (4)   in the case of Global Notes, deliver, or cause to be delivered, to the Paying  Agent the applicable Global Notes in order to reflect thereon the portion of such Notes or portions  thereof that have been tendered to and purchased by the Issuer; and              (5)   in the case of Definitive Registered Notes, deliver, or cause to be delivered, to  the Registrar for cancellation all Definitive Registered Notes accepted for purchase by the Issuer.        If any Definitive Registered Notes have been issued, the Paying Agent, at the Issuer’s expense,  will promptly mail to each Holder of Definitive Registered Notes so tendered the Change of Control  Payment for such Notes, and the Trustee will promptly instruct its authenticating agent to authenticate  and, at the Issuer’s expense, mail (or cause to be transferred by book-entry) to each Holder of Definitive  Registered  Notes  a  new  Definitive  Registered  Note  equal  in  principal  amount  to  the  unpurchased                                        72  EU-DOCS\26039728.6 





 






   portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount  that is at least $200,000 and integral multiples of $1,000 in excess thereof.        (e)   This  Section 4.03 will  be  applicable  whether  or  not  any  other  provisions  of  this  Indenture are applicable.        (f)   The Issuer will not be required to make a Change of Control Offer upon a Change of  Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in  compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer  made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such  Change of Control Offer.        (g)   Notwithstanding anything to the contrary herein, a Change of Control Offer may be  made in advance of a Change of Control, conditional upon such Change of Control, if a definitive  agreement is in place for the Change of Control at the time of making of the Change of Control Offer.  The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange  Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to  this Section 4.03. To the extent that the provisions of any securities laws or regulations conflict with  provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations  and will not be deemed to have breached its obligations under the Change of Control provisions of this  Indenture by virtue of the conflict.        (h)   If Holders of not less than 90% in aggregate principal amount of the outstanding Notes  validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or  any  third  party  making  a  Change  of  Control  Offer  in  lieu  of  the  Issuer  in  accordance  with  this  Section 4.03, purchases all of the Notes validly tendered and not validly withdrawn by such Holders,  the Issuer or such third party will have the right, upon not less than 10 nor more than 60 days’ prior  notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer  described above, to redeem all Notes that remain outstanding following such purchase at a price in cash  equal to 101% of the principal amount thereof plus accrued and unpaid interest to but excluding the  date  of  the  delivery  of  the  notice  for  such  redemption. In  determining  whether  the  Holders  of  at  least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and  not validly withdrawn Notes in a Change of Control Offer, Notes owned by any Affiliate of the Issuer  or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be  deemed to be outstanding for the purpose of such Change of Control Offer. Any redemption pursuant  to this Section 4.03 shall be made in accordance with Section 3.03 (other than the time periods specified  therein, which shall be made in accordance with this Section 4.03).        (i)   The provisions of this Indenture relating to the Issuer’s obligation to make an offer to  repurchase the Notes as a result of a Change of Control may be waived or modified with the written  consent of holders of a majority in outstanding principal amount of the Notes.   Section 4.04 Limitation on Indebtedness and Issuance of Disqualified Stock and Preferred Stock.        (a)   The Issuer 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 Issuer  will not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that  the  Issuer  may  Incur  Indebtedness and  issue  shares  of  Disqualified  Stock  and  any  of  the  Issuer’s  Restricted Subsidiaries may Incur 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 1.0, 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.                                        73  EU-DOCS\26039728.6 





 






        (b)   Section 4.04(a) will not prohibit the Incurrence of the following items of Indebtedness:              (1)   Indebtedness Incurred pursuant to any Credit Facility (including in respect of  letters of credit or bankers’ acceptances issued or created thereunder) and 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 Issuer are available immediately preceding the  date of determination; provided the amount of Indebtedness which may be incurred by the Issuer and  its  Restricted  Subsidiaries  pursuant  to  this  clause (1) shall  be  reduced  by  an  amount  (and  the  corresponding  percentage  of  Pro  Forma  EBITDA)  equal  to  the  aggregate  principal  amount  of  the  Existing Notes which remain outstanding following the completion of the Change of Control Tender;  provided further, that any Indebtedness incurred under this clause (1) may be refinanced with additional  Indebtedness in an amount equal to the principal of the Indebtedness so refinanced, plus any additional  amount  to  pay  premiums  (including  tender  premiums),  accrued  and  unpaid interest,  expenses,  defeasance costs and fees in connection therewith;              (2)   (a) Guarantees by the Issuer or any Restricted Subsidiary of Indebtedness of  the Issuer or any Restricted Subsidiary to the extent such guaranteed Indebtedness was permitted to be  incurred by another provision of this Section 4.04; provided that (i) if such Indebtedness is subordinated  in right  of payment  to,  or pari  passu in right  of payment  with,  the  Notes  or a Note  Guarantee,  as  applicable, then the Guarantee of such Indebtedness shall be subordinated in right of payment to, or  pari passu in right of payment with, the Notes or such Note Guarantee, as applicable, substantially to  the same extent as such guaranteed Indebtedness and (ii) if such Guarantee is of Indebtedness of the  Issuer or a Guarantor, such Restricted Subsidiary complies with Section 4.21(a); or (b) without limiting  Section 4.06, Indebtedness arising by reason of any Lien granted by or applicable to the Issuer or any  Restricted Subsidiary securing Indebtedness of the Issuer or any Restricted Subsidiary so long as the  Incurrence of such Indebtedness is not prohibited by the terms of this Indenture;              (3)   Indebtedness of the Issuer owing to and held by any Restricted Subsidiary or  Indebtedness  of  a  Restricted  Subsidiary  owing  to  and  held  by  the  Issuer  or any  other  Restricted  Subsidiary; provided, however, that if the Issuer or any Guarantor is the obligor on such Indebtedness  and the payee is not the Issuer or a Guarantor, such Indebtedness must be unsecured and ((i) except in  respect of intercompany current liabilities incurred in connection with cash management positions of  the Issuer and the Restricted Subsidiaries and the Global Trading Loan and (ii) only to the extent legally  permitted (the Issuer and the Restricted Subsidiaries having completed all procedures required in the  reasonable judgment of directors or officers of the obligee or obligor to protect such Persons from any  penalty  or  civil  or  criminal  liability  in  connection  with  the  subordination  of  such  Indebtedness))  expressly subordinated to the prior payment in full in cash of all obligations then due with respect to  the Notes, in the case of the Issuer, or the Note Guarantee, in the case of a Guarantor; provided that:                          (i)   any  subsequent issuance  or transfer  of  Capital  Stock  or  any                   other event which results in any such Indebtedness being beneficially held by                   a Person other than the Issuer or a Restricted Subsidiary; and                          (ii)  any sale or other transfer of any such Indebtedness to a Person                   other than the Issuer or a Restricted Subsidiary, shall be deemed, in each case,                   to  constitute  an  Incurrence  of  such  Indebtedness  not  permitted  by  this                   clause (3) by the Issuer or such Restricted Subsidiary, as the case may be;              (4)   (a) Indebtedness represented by the Notes (other than any Additional Notes)  issued on the Issue Date and the Note Guarantees thereof; (b) any Indebtedness (other than Indebtedness  described in clauses (1) and (3) of this Section 4.04(b)) outstanding on the Issue Date, after giving effect  to the Transactions, including the issuance of the Notes, and the application of the proceeds thereof,  and  the  repurchase  of  any Existing  Notes in  the  Change  of  Control  Tender; (c) Refinancing  Indebtedness  Incurred  in  exchange  for,  or  the  net  proceeds  of  which  are  used  to  renew,  refund,                                       74  EU-DOCS\26039728.6 





 






   refinance, replace,  defease  or  discharge  any,  or  otherwise  Incurred  in  respect of  any,  Indebtedness  described  in  sub-clauses (a),  (b) or  (c) of  this  Section 4.04(b)(4) or  Section 4.04(b)(5) or  Incurred  pursuant to Section 4.04(a); (d) Management Advances; and (e) Indebtedness represented by the Notes  Security Documents and including, with respect to each such Indebtedness, “parallel debt” obligations  created under the Intercreditor Agreement and the Notes Security Documents;              (5)   Indebtedness of (i) any Person Incurred or outstanding on the date on which  such Person becomes a Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise  combined with the Issuer or any Restricted Subsidiary or pursuant to any acquisition of assets and  assumption of related liabilities by the Issuer or a Restricted Subsidiary (including in contemplation of  such transaction) or (ii) the Issuer or any Restricted Subsidiary Incurred to provide all or any portion of  the funds utilized to consummate the transaction or series of related transactions pursuant to which a  Person  became  a  Restricted  Subsidiary  or  was  otherwise  acquired  by  the  Issuer  or  a  Restricted  Subsidiary or pursuant to any Investment or acquisition of assets and assumption of related liabilities  by the Issuer or a Restricted Subsidiary or otherwise in connection with or in contemplation of such  acquisition or other transaction; provided, however, that (a) the Issuer would have been able to incur  $1.00 of additional Indebtedness pursuant to Section 4.04(a) after giving effect to the Incurrence of such  Indebtedness pursuant to this clause (5) or (b) the Consolidated Net Leverage Ratio would not be greater  than it was immediately prior to giving effect to such Incurrence;              (6)   [Reserved];              (7)   (a) Indebtedness under Currency Agreements (other than Currency Agreements  described  in  (b) below),  Interest  Rate  Agreements  and  Commodity  Hedging  Agreements  and  (b) Indebtedness under Currency Agreements entered into in order to hedge any operating expenses and  capital expenditures Incurred in the ordinary course of business; in each case with respect to clauses (a)  and (b) of this clause (7), entered into for bona fide hedging purposes of the Issuer or the Restricted  Subsidiaries and not for speculative purposes (as determined in good faith by an Officer or the Board  of Directors of the Parent Guarantor or the Issuer);              (8)   Indebtedness  consisting of  (A) mortgage  financings,  Purchase  Money  Obligations or other financings Incurred for the purpose of financing all or any part of the 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  Similar  Business  or  (B) Indebtedness  otherwise  Incurred  to  finance  the  purchase,  lease,  rental  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 purchase of assets or the Capital Stock of  any  Person  owning  such  assets,  in  an  aggregate  outstanding  principal  amount  which,  when  taken  together with the principal amount of all other Indebtedness Incurred pursuant to this clause (8) and  then outstanding, will not exceed at any time outstanding the greater of $20 million and 10% of Pro  Forma  EBITDA for  the  most  recently  ended  four  full  fiscal  quarters  for  which  internal  financial  statements of the Issuer are available immediately preceding the date of determination; provided that  any Indebtedness incurred under this clause (8) may be refinanced with additional Indebtedness in an  amount equal to the principal of the Indebtedness so refinanced, plus any additional amount to pay  premiums (including tender premiums), accrued and unpaid interest, expenses, defeasance costs and  fees in connection therewith;              (9)   Indebtedness in  respect  of  (a) workers’ compensation  claims,  self-insurance  obligations,  performance, indemnity, surety, judgment, appeal, advance payment, customs,  VAT or  other  tax  or  other  guarantees  or  other  similar  bonds,  instruments  or  obligations  and  completion  guarantees and warranties provided by the Issuer or a Restricted Subsidiary or relating to liabilities,  obligations or guarantees (including auction guarantees) Incurred in the ordinary course of business or  in respect of any governmental requirement, including in relation to a governmental requirement to  provide  a guarantee or bond, (b) letters  of credit, bankers’ acceptances, guarantees or other similar  instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course                                       75  EU-DOCS\26039728.6 





 






   of business; provided, however, that upon the drawing of such letters of credit or other instrument, such  obligations  are  reimbursed  within 30 days  following  such  drawing;  (c) the  financing  of  insurance  premiums in the ordinary course of business; and (d) any customary cash management, cash pooling or  netting or setting off arrangements in the ordinary course of business;              (10)  Indebtedness  arising  from  agreements  providing  for  customary  guarantees,  indemnification, obligations in respect of earnouts or other adjustments of purchase price or, in each  case,  similar  obligations,  in  each  case,  Incurred  or  assumed  in  connection  with  the  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 disposing of such business or assets or  such Subsidiary for the purpose of financing such acquisition or disposition);              (11)  Indebtedness arising from the honoring by a bank or other financial institution  of  a  check,  draft  or  similar  instrument  drawn  against  insufficient  funds  in  the  ordinary  course  of  business; provided, however,  that  such  Indebtedness  is  extinguished  within 30 Business  Days  of  Incurrence;              (12)  Indebtedness under daylight borrowing facilities incurred in connection with  any  refinancing  of  Indebtedness  (including  by  way  of  set-off  or  exchange); provided that  such  Indebtedness  does  not  exceed  the  principal  amount  of  the  Indebtedness  being  refinanced  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 repaid within three days of the  date on which such Indebtedness is Incurred;              (13)  Indebtedness  Incurred  pursuant  to  any factoring,  securitizations, receivables  financings  or  similar  arrangements,  including  by  a  Receivables  Entity  in  a  Qualified  Receivables  Financing, with respect to which recourse to the Issuer or any Restricted Subsidiary in connection with  such transactions is limited to the extent customary (as determined by the Issuer in good faith) for  similar transactions in the applicable jurisdictions (including Standard Securitization Undertakings and,  to the extent applicable, in a manner consistent with the delivery of a “true sale”/“absolute transfer”  opinion with respect to any transfer by a Parent, the Issuer or any Restricted Subsidiary);              (14)  Indebtedness Incurred by the Issuer or a Restricted Subsidiary or Disqualified  Stock of the Issuer in an aggregate outstanding principal amount which, when taken together with the  principal amount of all other Indebtedness Incurred pursuant to this clause (14) and then outstanding,  will not exceed 100% of the Net Cash Proceeds received by the Issuer and the Restricted Subsidiaries  from  the  issuance  or  sale  (other  than  to  the  Issuer  or  a  Restricted  Subsidiary)  of  its  Subordinated  Shareholder Funding or Capital Stock (other than Disqualified Stock, Designated Preference Shares,  the Equity Contribution or an Excluded Contribution) or otherwise contributed to the equity (other than  through the issuance of Disqualified Stock, Designated Preference Shares, the Equity Contribution or  an Excluded Contribution) of the Issuer, in each case, subsequent to the Completion Date; provided,  however, that (i) any such Net Cash Proceeds that are so received or contributed shall be excluded for  purposes  of  making  Restricted  Payments  under  Section 4.05(a) and  clauses (1), (6) and (10) of  Section 4.05(b))  to  the  extent  the  Issuer  or  a Restricted  Subsidiary incurs  Indebtedness  in  reliance  thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes  of  Incurring  Indebtedness  pursuant  to  this  clause (14) to  the  extent  the  Issuer  or  any  Restricted  Subsidiary makes a Restricted Payment under clauses (1), (6) and (10) of Section 4.05(b) in reliance  thereon; provided that  any  Indebtedness  incurred  under  this clause (14) may  be  refinanced with  additional Indebtedness in an amount equal to the principal of the Indebtedness so refinanced, plus any  additional amount to pay premiums (including tender premiums), accrued and unpaid interest, expenses,  defeasance costs and fees in connection therewith;              (15)  Indebtedness of the Issuer or any of its Restricted Subsidiaries arising pursuant  to any Permitted Reorganization; and                                        76  EU-DOCS\26039728.6 





 






              (16)  Indebtedness, Disqualified Stock or Preferred Stock in an aggregate principal  amount  or  liquidation  preference  that,  when  aggregated  with  the  principal  amount  or  liquidation  preference  of  all  other  Indebtedness,  Disqualified  Stock  and  Preferred  Stock  then  outstanding  and  Incurred (including any Refinancing Indebtedness in respect thereof) pursuant to this clause (16) and  then outstanding, will not exceed the greater of $75 million and 33% of Pro Forma EBITDA for the  most recently ended four full fiscal quarters for which internal financial statements of the Issuer are  available immediately preceding the date of determination; provided that any Indebtedness incurred  under  this  clause (16) may  be  refinanced  with  additional  Indebtedness  in  an  amount  equal  to  the  principal of the Indebtedness so refinanced, plus any additional amount to pay premiums (including  tender  premiums),  accrued  and  unpaid  interest,  expenses,  defeasance  costs  and  fees  in  connection  therewith.        (c)   Notwithstanding the foregoing, a Restricted Subsidiary that is not a Guarantor may not  Incur Indebtedness or issue Disqualified Stock or Preferred Stock under Section 4.04(a) and clauses (1),  (5), (14) and (16) of Section 4.04 (b) if the Non-Guarantor Debt Cap would be exceeded, as determined  on a pro forma basis (including a pro forma application of the net proceeds therefrom).        (d)   [Reserved].        (e)   [Reserved].        (f)   For purposes of determining compliance with, and the outstanding principal amount of  any particular Indebtedness Incurred pursuant to and in compliance with, this Section 4.04:              (1)   in the event that Indebtedness meets the criteria of more than one of the types  of Indebtedness described in Section 4.04(a) and Section 4.04(b), the Issuer, in its sole discretion, will  classify, and may from time to time reclassify, such item of Indebtedness and only be required to include  the amount and type of such Indebtedness in Section 4.04(a) or one of the clauses of Section 4.04(b);  provided that Indebtedness Incurred (or deemed Incurred) on the Completion Date or any Refinancing  Indebtedness in respect thereof under Section 4.04(b)(1) cannot be reclassified;               (2)   subject to Section 4.04(f)(1), all Indebtedness outstanding on the Completion  Date under the New Credit Facilities shall be deemed Incurred on the Completion Date under Section  4.04(b)(1) and not Section 4.04(a) or Section Section 4.04(b)(4)(b);              (3)   Guarantees  of,  or  obligations  in  respect  of  letters  of  credit,  bankers’  acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is otherwise  included in the determination of a particular amount of Indebtedness shall not be included;              (4)   if  obligations  in  respect  of  letters  of  credit,  bankers’ acceptances  or  other  similar  instruments  are  Incurred  pursuant  to  any  Credit  Facility  and  are  being  treated  as  Incurred  pursuant to clauses (1), (8), (14) or (16) of Section 4.04(b) or Section 4.04(a) and the letters of credit,  bankers’ acceptances  or  other  similar  instruments  relate  to  other Indebtedness,  then  such  other  Indebtedness shall not be included;              (5)   the principal amount of any Disqualified Stock of the Issuer or a Restricted  Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum  mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase  premium) or the liquidation preference thereof;              (6)   Indebtedness permitted by this Section 4.04 need not be permitted solely by  reference to one  provision permitting such Indebtedness  but may be  permitted in part by one  such  provision and in part by one or more other provisions of this Section 4.04 permitting such Indebtedness;  and                                        77  EU-DOCS\26039728.6 





 






              (7)   the  amount  of  Indebtedness  issued  at  a  price  that  is  less  than  the  principal  amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of  GAAP.        (g)   Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion  or amortization of original issue discount, the payment of interest in the form of additional Indebtedness,  the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or  the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP  will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 4.04. The amount  of any Indebtedness outstanding as of any date shall be (a) the accreted value thereof in the case of any  Indebtedness issued with original issue discount and (b) the principal amount, or liquidation preference  thereof, in the case of any other Indebtedness.        (h)   If  at  any  time  an  Unrestricted  Subsidiary  becomes  a  Restricted  Subsidiary,  any  Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such  date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 4.04,  the Issuer shall be in Default of this Section 4.04).        (i)   For purposes of determining compliance with any dollar-denominated restriction on the  Incurrence of Indebtedness, the Dollar Equivalent of the principal amount of Indebtedness denominated  in another currency 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 Issuer, on the date first committed; provided  that (a) if such Indebtedness is Incurred to refinance other 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 currency 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 Refinancing Indebtedness does not exceed the principal amount of such Indebtedness  being refinanced plus any amount to pay premiums (including tender premiums), accrued and unpaid  interest, expenses, defeasance costs and fees in connection therewith; (b) the Dollar Equivalent of the  principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on  the relevant currency exchange rate in effect on the Issue 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 such Indebtedness is denominated covering principal amount and interest payable on  such Indebtedness, the amount of such Indebtedness, will be the Dollar Equivalent of the principal  payment  required  to  be  made  under  such  Currency  Agreement  plus  the  Dollar  Equivalent  of  any  premium which is at such time due and payable but is not covered by such Currency Agreement.        (j)   For purposes of determining compliance with the Consolidated Net Leverage Ratio or,  the Consolidated Net Senior Secured Leverage Ratio, on the Incurrence of Indebtedness, the Dollar  Equivalent of the principal amount of Indebtedness denominated in another currency 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 Issuer, the date first committed; provided that (a) if such Indebtedness is Incurred  to refinance other 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  currency 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  Refinancing  Indebtedness does not exceed the principal amount of such Indebtedness being refinanced plus any  amount  to  pay  premiums  (including  tender  premiums),  accrued  and  unpaid  interest,  expenses,  defeasance costs and fees in connection therewith; and (b) the Dollar Equivalent of the principal amount  of  any  such  Indebtedness  outstanding  on  the Issue Date  shall  be  calculated  based  on  the  relevant  currency exchange rate in effect on the Issue Date.        (k)   For purposes of calculating the Consolidated Net Leverage Ratio or, the Consolidated  Net  Senior  Secured  Leverage  Ratio  to  test  compliance  with  any  covenant  in  this  Indenture,  in                                        78  EU-DOCS\26039728.6 





 






   determining  the  amount  of  Indebtedness  outstanding  in  dollars  on  any  date  of  determination,  with  respect to any Indebtedness denominated in a currency other than dollars (the “Foreign Currency”):              (1)   subject to a  currency swap arrangement or contract, the  aggregate  principal  amount of such Foreign Currency Indebtedness on any such date of determination shall be the dollar  amount of the aggregate principal amount to be paid by the Issuer or a Restricted Subsidiary on the  maturity date of such currency swap arrangement or contract pursuant to the terms thereof; or              (2)   subject to a currency forward arrangement, forward accretion curve or contract,  the aggregate principal amount of such Foreign Currency Indebtedness shall be converted into dollars  at the exchange rate specified under the terms of such currency forward arrangement, forward accretion  curve or contract as applicable to such Foreign Currency Indebtedness on such date of determination.        (l)   For the avoidance of doubt, notwithstanding a Group member entering into any such  arrangement or contract hedging foreign exchange exposure of any Foreign Currency Indebtedness, for  the  purposes  of  calculating  the  Consolidated  Net  Leverage  Ratio or,  the  Consolidated  Net  Senior  Secured  Leverage  Ratio,  the  aggregate  principal  amount  of  Indebtedness  subject  to  any  such  arrangement  or  contract  shall  be  attributed  to  the  total  Indebtedness  of  the  Person  that  originally  Incurred such Indebtedness.        (m)   Notwithstanding  any other  provision  of  this  Section 4.04,  the  maximum  amount  of  Indebtedness that the Issuer 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 of currencies.        (n)   Neither  the  Issuer  nor  any  Guarantor  will  incur  any  Indebtedness  (including  any  Indebtedness  permitted  to  be  Incurred  pursuant  to  this  Section 4.04(b))  that  is  contractually  subordinated in right of payment to any other Indebtedness of the Issuer or such Guarantor unless such  Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note  Guarantee  on  substantially  identical  terms  (as  determined  in  good  faith  by  the  Issuer); provided,  however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to  any other Indebtedness of the Issuer or any Guarantor solely by virtue of being unsecured, by virtue of  being secured with different collateral, by virtue of being secured on a junior priority basis, by virtue  of not being guaranteed by one or more of the Issuer’s Subsidiaries or by virtue of the application of  waterfall or other payment-ordering provisions affecting different tranches of Indebtedness under Credit  Facilities.   Section 4.05 Limitation on Restricted Payments.        (a)   The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or  indirectly:              (1)   declare  or  pay  any  dividend  or  make  any  other  payment  or  distribution  on  account of or in respect of the Issuer’s or any Restricted Subsidiary’s Capital Stock (including, without  limitation, any payment in connection with any merger or consolidation involving the Issuer or any  Restricted Subsidiary) except:                    (A)   dividends or distributions payable in Capital Stock of the Issuer (other             than Disqualified Stock) or in options, warrants or other rights to purchase such Capital             Stock  of  the  Issuer  (other  than  Disqualified  Stock)  or  in  Subordinated  Shareholder             Funding; and                    (B)   dividends  or  distributions  payable  to  the  Issuer  or  a  Restricted             Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or             distribution, to holders of its Capital Stock other than the Issuer or another Restricted             Subsidiary on no more than a pro rata basis, measured by value);                                        79  EU-DOCS\26039728.6 





 






              (2)   purchase,  redeem,  retire  or  otherwise  acquire  for  value  (including,  without  limitation,  any  payment  in  connection  with  any  merger  or  consolidation  involving  the  Issuer)  any  Capital Stock of the Issuer or any direct or indirect Parent of the Issuer held by Persons other than the  Issuer or a Restricted Subsidiary (other than in exchange for Capital Stock of the Issuer (other than  Disqualified Stock));              (3)   make any principal payment on, or purchase, repurchase, redeem, defease or  otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled  sinking  fund  payment,  any  Subordinated  Indebtedness  (other than  (a) any  such payment,  purchase,  repurchase, redemption, defeasance or other acquisition or retirement or in anticipation of satisfying a  sinking fund obligation, principal instalment or final maturity, 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 Section 4.04(b)(3));              (4)   make  any  payment  on  or  with  respect  to,  or  purchase,  redeem,  defease  or  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 other than in  exchange for Capital Stock of the Issuer (other than Disqualified Stock) or for options, warrants or other  rights to purchase such Capital Stock of the Issuer (other than Disqualified Stock)); or              (5)   make any Restricted Investment in any Person;   (any  such  dividend,  distribution,  payment,  purchase,  redemption,  repurchase,  defeasance,  other  acquisition,  retirement  or  Restricted  Investment  referred  to  in  clauses (1) through (5) of  this  Section 4.05(a) are referred to herein as a “Restricted Payment”), if at the time the Issuer or a Restricted  Subsidiary makes such Restricted Payment:                    (A)   a Default or Event of Default (or in the case of a Restricted Investment,             an Event of Default under clauses (1), (2) or (6) of Section 6.01(a)) shall have occurred             and be continuing (or would result immediately thereafter therefrom);                    (B)   except  in  the  case  of  a  Restricted  Investment,  if  such  Restricted             Payment is made in reliance on Section 4.05(a)(5)(C)(i), the Issuer is not able to Incur             an additional $1.00 of Indebtedness pursuant to Section 4.04(a) after giving effect, on             a pro forma basis, to such Restricted Payment; or                    (C)   the  aggregate  amount  of  such  Restricted  Payment  and  all  other             Restricted Payments made by the Issuer and the Restricted Subsidiaries subsequent to             the Completion Date (and not returned or rescinded) (including Permitted Payments             permitted below by clauses (5) (without duplication of amounts paid pursuant to any             other clause of Section 4.05(b)), (6), (10) and (20) (to the extent it relates to Restricted             Payments permitted by such clauses (5) or (10)) of Section 4.05(b), but excluding all             other  Restricted  Payments  permitted  by  Section 4.05(b))  would  exceed  the  sum  of             (without duplication):                          (i)   an amount equal to 50% of the Consolidated Net Income for                   the period beginning on the first day of the first full fiscal quarter commencing                   prior to the Completion Date to the end of the Issuer’s most recently ended full                   fiscal quarter ending prior to the date of such Restricted Payment for which                   internal consolidated financial statements of the Issuer are available, taken as                   a single accounting period (or in the case such Consolidated Net Income for                   such period is a deficit, minus 100% of such deficit);                          (ii)  100% of the aggregate Net Cash Proceeds, and the fair market                   value (as determined in accordance with Section 4.05(c)) of property or assets                   or marketable securities, received by the Issuer from the issue or sale of its                                       80  EU-DOCS\26039728.6 





 






                    Capital Stock (other than Disqualified Stock or Designated Preference Shares)                   or Subordinated Shareholder Funding subsequent to the Completion Date or                   otherwise  contributed  to  the  equity  (other  than  through  the  issuance  of                   Disqualified Stock or Designated Preference Shares) of the Issuer subsequent                   to the Completion Date (other than (x) Net Cash Proceeds or property or assets                   or marketable securities received from an issuance or sale of such Capital Stock                   to the Issuer or a Restricted Subsidiary or an employee stock ownership plan                   or trust established by the Issuer or any Subsidiary of the Issuer for the benefit                   of its employees to the extent funded by the Issuer or any Restricted Subsidiary,                   (y) Net  Cash  Proceeds  or property  or  assets  or  marketable  securities  to  the                   extent  that  any  Restricted  Payment  has  been  made  from  such  proceeds  in                   reliance on Section 4.05(b)(6), and (z) Excluded Contributions and the Equity                   Contribution);                          (iii) 100% of the aggregate Net Cash Proceeds, and the fair market                   value (as determined in accordance with Section 4.05(c)) of property or assets                   or marketable securities, received by the Issuer or any Restricted Subsidiary                   from the issuance or sale (other than to the Issuer or a Restricted Subsidiary or                   an employee stock ownership plan or trust established by the  Issuer or any                   Subsidiary of the Issuer for the benefit of its employees to the extent funded by                   the  Issuer  or  any  Restricted  Subsidiary)  by  the  Issuer  or  any  Restricted                   Subsidiary subsequent to the Completion Date of any Indebtedness that has                   been converted into or exchanged for Capital Stock of the Issuer (other than                   Disqualified  Stock  or  Designated  Preference  Shares)  or  Subordinated                   Shareholder Funding (plus the amount of any cash, and the fair market value                   (as determined  in accordance  with  Section 4.05(c)) of  property  or  assets  or                   marketable securities, received by the Issuer or any Restricted Subsidiary upon                   such conversion or exchange) but excluding (x) Net Cash Proceeds or property                   or assets or marketable securities to the extent that any Restricted Payment has                   been  made  from  such  proceeds  in  reliance  on  Section 4.05(b)(6),  and                   (y) Excluded Contributions and the Equity Contribution;                          (iv)  the amount equal to the net reduction in Restricted Investments                   made  by  the  Issuer  or  any  of  the  Restricted  Subsidiaries  resulting  from                   repurchases,  redemptions  or  other  acquisitions  or  retirements  of  any  such                   Restricted Investment, proceeds realized upon the sale or other disposition to a                   Person other than the Issuer or a Restricted Subsidiary of any such Restricted                   Investment,  repayments  of  loans  or  advances  or  other  transfers  of  assets                   (including by way of dividend,  distribution, interest payments  or returns  of                   capital) to the Issuer or any Restricted Subsidiary, which amount, in each case                   under  this  clause (iv),  constituted  a  Restricted  Payment  made  after  the                   Completion  Date; provided,  however,  that  no  amount  will  be  included  in                   Consolidated EBITDA for purposes of Section 4.05(a)(5)(C)(i) to the extent                   that it is (at the Issuer’s option) included under this clause (iv);                          (v)   the amount of the cash and the fair market value (as determined                   in accordance with Section 4.05(c)) of property, assets or marketable securities                   received by the Issuer or any Restricted Subsidiary after the Completion Date                   in connection with:                    (D)   the sale or other disposition (other than to the Issuer or a Restricted             Subsidiary or an employee stock ownership plan or trust established by the Issuer or             any Subsidiary of the Issuer for the benefit of its employees to the extent funded by the             Issuer or any Restricted Subsidiary) of Capital Stock of an Unrestricted Subsidiary of             the Issuer; and                                       81  EU-DOCS\26039728.6 





 






                    (E)   any dividend or distribution made by an Unrestricted Subsidiary to the             Issuer or a Restricted Subsidiary;              provided,  however,  that  no  amount  will  be  included  in  Consolidated  EBITDA  for             purposes  of  Section 4.05(a)(5)(C)(i) to  the  extent  that  it  is  (at  the  Issuer’s  option)             included under this clause (v); and                          (i)   in the case of the designation of an Unrestricted Subsidiary as                   a Restricted Subsidiary or all of the assets of such Unrestricted Subsidiary are                   transferred  to  the  Issuer  or  a  Restricted  Subsidiary,  or  the  Unrestricted                   Subsidiary is merged or consolidated into the Issuer or a Restricted Subsidiary,                   in each case, after the Completion Date, 100% of such amount received in cash                   and the fair market value (as determined in accordance with Section 4.05(c))                   of  any  property,  assets  or marketable  securities  received  by  the  Issuer  or  a                   Restricted Subsidiary in respect of such redesignation, merger, consolidation                   or  transfer  of  assets,  excluding  any  amount  of  any  Investment  in  such                   Unrestricted Subsidiary pursuant to clause (16) of the definition of “Permitted                   Investment”, in each case of this clause (vi); provided, however, that no amount                   will  be  included  in  Consolidated  EBITDA  for  purposes  of                   Section 4.05(a)(5)(C)(i) to the extent that it is (at the Issuer’s option) included                   under this clause (vi); provided further, however, that such amount shall not                   exceed  the  amount  included  in  the  calculation  of  the  amount  of  Restricted                   Payments referred to in the first sentence of Section 4.05(a)(5)(C).        (b)   Section 4.05(a) will not  prohibit  any  of  the  following  (collectively, “Permitted  Payments”):              (1)   any  Restricted  Payment  made  in  exchange  (including  any  such  exchange  pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu  of the issuance of fractional shares) for, or out of the Net Cash Proceeds within 120 days after the sale  (other  than  to  the  Issuer  or  a  Subsidiary  of  the  Issuer)  of,  Capital  Stock  of  the  Issuer  (other  than  Disqualified  Stock  or  Designated  Preference  Shares  or  through  an  Excluded  Contribution),  Subordinated Shareholder Funding or within 120 days after the contribution to the equity (other than  through the issuance of Disqualified Stock or Designated Preference Shares or through an Excluded  Contribution) of the Issuer; provided, however, that to the extent so applied, the Net Cash Proceeds, or  fair market value (as determined in accordance with Section 4.05(c)) of property, assets or marketable  securities, from such sale of Capital Stock or Subordinated Shareholder Funding or such contribution  will be excluded for purposes of Section 3.07;              (2)   any  purchase,  repurchase,  redemption,  defeasance  or  other  acquisition  or  retirement of Subordinated Indebtedness of the Issuer or a Subsidiary Guarantor made by exchange for,  or out of the Net Cash Proceeds within 120 days after the Incurrence of, Refinancing Indebtedness  permitted to be Incurred pursuant to Section 4.04;              (3)   (a) any purchase, repurchase, redemption, defeasance or other acquisition or  retirement of Preferred Stock of the Issuer 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 Issuer or a Restricted  Subsidiary, and (b) any purchase, repurchase, redemption, defeasance or other acquisition or retirement  of Disqualified Stock of the Issuer or a Restricted Subsidiary made by exchange for or out of the Net  Cash  Proceeds within  120  days  after  the sale  of  Disqualified  Stock  of  the  Issuer  or  a  Restricted  Subsidiary,  as  the  case  may  be,  that,  in  each  case  under  (a) and  (b) of  this  Section 4.05(b)(3),  is  permitted to be Incurred pursuant to Section 4.04, and that in each case (other than such sale of Preferred  Stock of the Issuer that is not Disqualified Stock) constitutes Refinancing Indebtedness;              (4)   any  purchase,  repurchase,  redemption,  defeasance  or  other  acquisition  or  retirement of Subordinated Indebtedness (or any loans, advances, dividends or other distributions by                                       82  EU-DOCS\26039728.6 





 






   the Issuer to any Parent to permit such Parent to purchase, repurchase, redeem, defease or otherwise  acquire or retire Indebtedness of any Parent so long as the Net Cash Proceeds (or portion thereof) of  such Indebtedness has been received by the Issuer from the issue or sale of its Capital Stock (other than  Disqualified Stock or Designated Preference Shares) or Subordinated Shareholder Funding subsequent  to  the  Completion  Date  or  otherwise  contributed  to  the  equity  (other  than  through  the  issuance  of  Disqualified Stock or Designated Preference Shares) of the Issuer subsequent to the Completion Date):                    (A)   (i) from Net Available Cash to the extent permitted under Section 4.08,             but only if the Issuer shall have first complied with Section 4.08, as applicable, and             purchased all Notes tendered pursuant to any offer to repurchase all the Notes required             thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise acquiring             or  retiring  such  Subordinated  Indebtedness  (or  making  any  such  loans,  advances,             dividends or other distributions to any Parent) and (ii) at a purchase price not greater             than 100%  of  the  principal  amount  of  such  Subordinated  Indebtedness  (or  such             Indebtedness of any Parent) plus accrued and unpaid interest (and costs, expenses and             fees incurred in connection therewith);                    (B)   to the extent required by the agreement governing such Subordinated             Indebtedness  (or  such  Indebtedness  of  any  Parent),  following  the  occurrence  of  a             Change of Control (or other similar event described therein as a “change of control”),             but only (i) if required, if the Issuer shall have first complied with Section 4.03 and             purchased all Notes tendered pursuant to the offer to repurchase all the Notes required             thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise acquiring             or  retiring  such  Subordinated  Indebtedness  (or  making  any  such  loans,  advances,             dividends or other distributions to any Parent) and (ii) at a purchase price not greater             than 101%  of  the  principal  amount  of  such  Subordinated  Indebtedness  or such             Indebtedness of any Parent plus accrued and unpaid interest (and costs, expenses and             fees incurred in connection therewith); and                    (C)   consisting of Acquired Indebtedness (other than Indebtedness Incurred             (A) to provide all or any portion of the funds utilized to consummate the transaction or             series  of  related  transactions  pursuant  to  which  such  Person  became  a  Restricted             Subsidiary  or  was  otherwise  acquired  by  the  Issuer  or  a  Restricted  Subsidiary  or             (B) otherwise in connection with or in contemplation of such acquisition).              (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;              (6)   the  purchase,  repurchase,  redemption,  defeasance  or  other  acquisition,  cancellation or retirement for value of Capital Stock of the Issuer, any Restricted Subsidiary or any  Parent (including any options, warrants or other rights in respect thereof) and loans, advances, dividends  or distributions by the Issuer to any Parent to permit any Parent to purchase, repurchase, redeem, defease  or otherwise acquire, cancel or retire for value Capital Stock of the Issuer, any Restricted Subsidiary or  any Parent (including any options, warrants or other rights in respect thereof), or payments to purchase,  repurchase, redeem, defease or otherwise acquire, cancel or retire for value Capital Stock of the Issuer,  any  Restricted  Subsidiary or  any  Parent  (including  any  options,  warrants  or  other rights  in  respect  thereof),  in  each  case  from  Management  Investors; provided that  such  payments,  loans,  advances,  dividends or distributions do not exceed an amount (net of repayments if any such loans or advances  equal to the greater of $20 million and 10% of Pro Forma EBITDA for the most recently ended four  full  fiscal  quarters  for  which  internal  financial  statements  of  the  Issuer  are  available  immediately  preceding the date of determination (which, subsequent to the consummation of an underwritten public  Equity Offering by the Issuer or any Parent, shall increase to the greater of $40 million and 20.0% of  Pro Forma EBITDA for the most recently ended four full fiscal quarters for which internal financial  statements  of  the  Issuer  are  available  immediately  preceding  the  date  of  determination); provided  further however that such payments, loans, advances, dividends or distributions in any such succeeding                                       83  EU-DOCS\26039728.6 





 






   calendar year do not exceed an amount (net of repayments of any such loans or advances) equal to  (1) the greater of $35 million and 15% of Pro Forma EBITDA for the most recently ended four full  fiscal quarters for which internal financial statements of the Issuer are available immediately preceding  the date of determination (which, subsequent to the consummation of an underwritten public Equity  Offering by the Issuer or any Parent, shall increase to the greater of $55 million and 25.0% of Pro Forma  EBITDA for the most recently ended four full fiscal quarters for which internal financial statements of  the Issuer are available immediately preceding the date of determination in any calendar year), plus  (2) the Net Cash Proceeds received by the Issuer or the Restricted Subsidiaries since the Completion  Date  (including  through  receipt  of  proceeds  from  the  issuance  or  sale  of  its  Capital  Stock  or  Subordinated Shareholder Funding to a Parent) from, or as a contribution to the equity (in each case  under this clause (6), other than through the issuance of Disqualified Stock or Designated Preference  Shares) of the Issuer from, the issuance or sale to Management Investors of Capital Stock (including  any options, warrants or other rights in respect thereof), to the extent such Net Cash Proceeds are not  included in any calculation under Section 4.05(a)(5)(C)(ii);              (7)   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 accordance with  Section 4.04;              (8)   purchases,  repurchases,  redemptions,  defeasances  or other  acquisitions  or  retirements of Capital Stock deemed to occur upon the exercise of stock options, warrants or other rights  in respect thereof if such Capital Stock represents a portion of the exercise price thereof;              (9)   dividends, loans, advances or distributions to any Parent or other payments by  the Issuer or any Restricted Subsidiary in amounts equal to (without duplication) the amounts required  for any Parent to pay:                    (A)   any Parent Expenses of any Parent or any Related Taxes; and                    (B)   amounts constituting or to be used for purposes of making payments to             the  extent  specified  in  clauses (2)  (with  respect  to  fees  and  expenses  incurred  in             connection with the transactions described therein), (5) and (11) of Section 4.09(b);              (10)  the declaration and payment by the Issuer of, or loans, advances, dividends or  distributions to any Parent to pay, dividends on the common stock or common equity interests of the  Issuer or any Parent, or purchases, repurchases or other acquisitions or retirements of common stock or  common equity interests of the Issuer or any Parent, in an amount not to exceed in any fiscal year the  greater of (a) 6% of the Net Cash Proceeds received by the Issuer from a Public Offering or contributed  to the equity (other than through the issuance of Disqualified Stock or Designated Preference Shares or  through an Excluded Contribution) of the Issuer or contributed as Subordinated Shareholder Funding  to the Issuer and (b) an aggregate amount per annum not to exceed 5% of Market Capitalization;              (11)  payments by the Issuer, or loans, advances, dividends or distributions to any  Parent to make payments, to holders of Capital Stock of the Issuer or any Parent in lieu of the issuance  of fractional shares of such Capital Stock; provided, however, that any such payment, loan, advance,  dividend or distribution shall not be for the purpose of evading any limitation of this Section 4.05 or  otherwise to facilitate any dividend or other return of capital to the holders of such Capital Stock (as  determined in good faith by an Officer or the Board of Directors of the Issuer);              (12)  Restricted Payments  in an aggregate  amount outstanding at any time  not to  exceed the fair market value of Excluded Contributions, or Investments in exchange for or using as  consideration Investments previously made under this clause (12);              (13)  payment  of  any  Receivables  Fees  and  purchases  of  Receivables  Assets  pursuant to a Receivables Repurchase Obligation in connection with a Qualified Receivables Financing;                                        84  EU-DOCS\26039728.6 





 






              (14)  dividends  or  other  distributions  of  Capital  Stock,  Indebtedness  or  other  securities of Unrestricted Subsidiaries;              (15)  [Reserved];              (16)  the declaration and payment of dividends to holders of any class or series of  Designated Preference Shares of the Issuer issued after the Completion Date; provided, however, that  the amount of all dividends declared or paid by the Issuer pursuant to this clause (16) shall not exceed  the Net Cash Proceeds received by the Issuer from the issuance or sale of such Designated Preference  Shares;              (17)  so long as no Event of Default has occurred and is continuing (or would result  therefrom),  any  Restricted  Payment  to  the  extent  that,  after  giving pro  forma effect  to  any  such  Restricted Payment, the Consolidated Net Leverage Ratio would be no greater than 4.0 to 1.0;              (18)  so long as no Event of Default has occurred and is continuing (or would result  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 ended four full fiscal  quarters for which internal financial statements of the Issuer are available immediately preceding the  date of determination;              (19)  Restricted Payments constituting any part of any Permitted Reorganization and,  in each case, fees and expenses relating thereto;              (20)  Restricted Payments to finance Investments or other acquisitions by a Parent or  any Affiliate (other than the Issuer or a Restricted Subsidiary) which would be otherwise permitted to  be made pursuant to this Section 4.05 if made by the Issuer or a Restricted Subsidiary; provided, that  (i) such Restricted Payment shall be made within 120 days of the closing of such Investment or other  acquisition,  (ii) such  Parent  or  Affiliate  of  the  Issuer  shall,  on  or  prior  to the  date  such  Restricted  Payment is made or if later, promptly following the closing of the Investment or the acquisition, cause  (1) all property acquired (whether assets or Capital Stock) to be contributed to the Issuer or one of its  Restricted Subsidiaries or (2) the merger, amalgamation, consolidation, or sale of the Person formed or  acquired into the Issuer or one of its Restricted Subsidiaries (in a manner not prohibited by Article (a))  in order to consummate such Investment or other acquisition, (iii) such Parent or Affiliate of the Issuer  receives no consideration or other payment in connection with such transaction except to the extent the  Issuer  or  a  Restricted  Subsidiary  could  have  given  such  consideration  or  made  such  payment  in  compliance with this Section 4.05 or Section 4.09 (without reference to this clause (20)) and (iv) any  property received in connection with such transaction shall not constitute an Excluded Contribution up  to the amount of such Restricted Payment made under this clause (20);              (21)  any payments in cash or in kind relating to the settlement of any future, forward  or other derivative contract entered into for non-speculative purposes;               (22)  the declaration and payment of dividends or distributions by the Issuer to, or  the making of loans to, a Parent in amounts required for a Parent to pay or cause to be paid, in each case  without duplication, fees and expenses related to any equity or debt offering (whether or not successful)  of such Parent              (23)  after the Completion Date, any distribution of net cash proceeds from any sales  or  dispositions  of  assets  or  any  distribution  of  assets  in  connection  with  the  Real  Estate  Portfolio  Transfer and the SFS Business Transfer; provided that: (i) no Default or Event of Default exists and is  continuing, (ii) (x) on a pro forma basis the Consolidated Net Leverage Ratio is no greater than 5.75 to  1.0, (provided that, if on a pro forma basis for each such distribution, the Consolidated Net Leverage  Ratio is higher than 5.75 to 1.0, the Issuer shall prepay sufficient term loans incurred under the New  Credit Facilities to ensure that the Consolidated Net Leverage Ratio, on a pro forma basis for such  distribution and prepayment becomes no greater than 5.75 to 1.00) and (y) the aggregate Pro Forma                                       85  EU-DOCS\26039728.6 





 






   EBITDA  generated  by  the  assets  distributed  in  connection  with  the  Real  Estate  Portfolio  Transfer  accounts for not greater than 25.0% of Pro Forma EBITDA, in each case, for the most recently ended  four full fiscal quarters for which internal financial statements of the Issuer are available immediately  preceding the date of determination and (iii) the Issuer shall use its commercially reasonable efforts to  consummate any such distribution on or prior to the nine-month anniversary of the Completion Date;  and              (24)  any  Restricted  Payments  made  in  connection  with  the  Acquisition  and  the  Refinancing  and  fees  and  expenses  relating  thereto  (including  without  limitation,  any  deferred  compensation payments to existing management of Target and dividends by the Target that have a  record date before the Completion Date, but a payment date on or after the Completion Date).        (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 Payment or  Permitted Investment (or, at the option of the Issuer, on the date of entry into of a commitment, contract  or  resolution  with  respect  to  such  Restricted Payment  or  Permitted  Investment)  of  the  asset(s)  or  securities proposed to be paid, transferred or issued by the Issuer or such Restricted Subsidiary, as the  case may be, pursuant to such Restricted 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 face amount, and the fair market value of any non-cash Restricted Payment or  Permitted Investment or any other property, assets or securities required to be valued by this Section  4.05 shall be determined conclusively by an Officer or the Board of Directors of the Issuer acting in  good faith.        (d)   For purposes of determining compliance with this Section 4.05 and the definition of  “Permitted Investments,” as applicable, in the event that a Restricted Payment or a Permitted Investment  meets  the  criteria  of  more  than  one  of  the  categories  described  in  clauses (1) through (24) of  Section 4.05(b) or in the definition of “Permitted Investments,” as applicable, or is permitted pursuant  to Section 4.05(a), the Issuer will be entitled to classify such Restricted Payment (or portion thereof) or  such  Permitted  Investment  (or  portion  thereof)  on  the  date  of  its  payment  or  later  reclassify  such  Restricted Payment (or portion thereof) or such Permitted Investment (or portion thereof) in any manner  that complies with this Section 4.05.   Section 4.06 Limitation on Liens.         (a)   The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or  indirectly, create, Incur or suffer to exist any Lien upon any of their property or assets (including Capital  Stock of a Restricted Subsidiary), whether owned on the Issue Date or acquired after that date, or any  interest therein or any income or profits therefrom, which Lien is securing any Indebtedness (such Lien,  the  “Initial  Lien”),  except  (a) in  the  case  of  any  property  or  asset  that  does  not  constitute  Notes  Collateral, (i) Permitted Liens or (ii) Liens on assets that are not Permitted Liens if the Notes and this  Indenture (or a Note Guarantee in the case of Liens of a Guarantor) are directly secured equally and  ratably with, or prior to, in the case of Liens with respect to Subordinated Indebtedness, the Indebtedness  secured by such Initial Lien for so long as such Indebtedness is so secured and (b) in the case of any  property or assets that constitutes Notes Collateral, Permitted Collateral Liens.        (b)   For purposes of determining compliance with this Section 4.06, in the event that a Lien  (or any portion thereof) meets the criteria of one or more of the clauses contained in the definition of  “Permitted Liens” or “Permitted Collateral Liens”, as applicable, the Issuer shall be entitled to, in its  sole discretion, divide, classify or subsequently reclassify, in whole or in part, at any time such Lien (or  any portion thereof) among one or more of the clauses contained in the definition of “Permitted Liens”  or “Permitted Collateral Liens”, as applicable.    Section 4.07 Limitation on Restrictions on Distributions from Restricted Subsidiaries.                                        86  EU-DOCS\26039728.6 





 






        (a)   The Issuer will not, and will not permit any of its Restricted Subsidiaries to, create or  otherwise  cause or permit to exist or become  effective  any consensual encumbrance  or consensual  restriction on the ability of any Restricted Subsidiary to:              (1)   pay  dividends  or  make  any  other  distributions  in  cash  or  otherwise  on  its  Capital Stock to the Issuer or any Restricted Subsidiary or pay any Indebtedness or other obligations  owed to the Issuer or any Restricted Subsidiary;              (2)   make any loans or advances to the Issuer or any Restricted Subsidiary; or              (3)   sell, lease or transfer any of its property or assets to the Issuer or any Restricted  Subsidiary,   provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions  prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of  (including the application of any standstill requirements to) loans or advances made to the Issuer or any  Restricted Subsidiary to other Indebtedness Incurred by the Issuer or any Restricted Subsidiary, or any  prohibition on securing such loans or advances made to the Issuer or any Restricted Subsidiary, shall  not be deemed to constitute such an encumbrance or restriction.        (b)   Section 4.07(a) will not prohibit:              (1)   any encumbrance or restriction pursuant to any Credit Facility or any other  agreement  or  instrument,  in  each  case,  in  effect  at  or  entered  into  on  the Issue  Date,  and  any  amendments,  restatements,  modifications,  renewals,  supplements,  refundings,  replacements  or  refinancings of such agreements; provided that the amendments, restatements, modifications, renewals,  supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a  whole,  with  respect  to  such  dividend  and  other  payment  restrictions  than  those  contained  in  those  agreements on the Issue Date (as determined in good faith by the Issuer);              (2)   [Reserved];              (3)   encumbrances or restrictions existing under or by reason of this Indenture, the  Notes (and the guarantees thereof), the Existing Notes (and the guarantees thereof), the Existing Notes  Indenture, and the New Credit Facilities (and the security documents associated therewith);              (4)   any encumbrance or restriction pursuant to an agreement or instrument of a  Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date  on which (i) such Person was acquired by or merged, consolidated or otherwise combined with or into  the Issuer or any Restricted Subsidiary, (ii) such agreement or instrument is assumed by the Issuer or  any Restricted Subsidiary in connection with an acquisition of assets or (iii) such Person became a  Restricted Subsidiary (in each case, other than Capital Stock or Indebtedness Incurred as consideration  in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of  related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by  the Issuer or was merged, consolidated or otherwise combined with or into the Issuer or any Restricted  Subsidiary) and outstanding on such date; provided that, for the purposes of this clause (4), if another  Person is the Successor Company, or any Subsidiary thereof, any agreement or instrument of such  Person or any such Subsidiary shall be deemed acquired or assumed by the Issuer or any Restricted  Subsidiary when such Person becomes the Successor Company;              (5)   any  encumbrance  or  restriction  pursuant  to  an  agreement  or  instrument  effecting a refunding, replacement or refinancing of Indebtedness Incurred pursuant to, or that otherwise  extends, renews, refunds, refinances or replaces an agreement or instrument referred to in clauses (1),  (3), (4) or (5) of  this  Section 4.07(b) (an “Initial  Agreement”)  or  contained  in  any  amendment,  supplement or other modification to an agreement referred to in clauses (1), (3) , (4) or (5) of this  Section 4.07(b); provided,  however,  that  the  encumbrances  and  restrictions  with  respect  to  such                                       87  EU-DOCS\26039728.6 





 






   Restricted  Subsidiary  contained  in  any  such  agreement  or  instrument  are  no  less  favorable  in  any  material respect to the Holders taken as a whole than the encumbrances and restrictions contained in  the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or  other modification relates (as determined in good faith by the Issuer);              (6)   any encumbrance or restriction:                    (A)   that  restricts  in  a  customary  manner  the  subletting,  assignment  or             transfer 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 contract;                    (B)   contained in mortgages, pledges or other security agreements permitted             under this Indenture or securing Indebtedness of the Issuer or a Restricted Subsidiary             permitted under this Indenture to the extent such encumbrances or restrictions restrict             the transfer of the property or assets subject to such mortgages, pledges or other security             agreements;                    (C)   pursuant  to  customary  provisions  restricting  dispositions  of  real             property interests set forth in any reciprocal easement agreements of the Issuer or any             Restricted Subsidiary; or                    (D)   pursuant  to  the  terms  of  any  license,  authorization,  concession  or             permit;              (7)   any encumbrance or restriction pursuant to Purchase Money Obligations and  Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances  or restrictions on the property so acquired or any encumbrance or restriction pursuant to a joint venture  agreement that imposes restrictions on the transfer of the assets of the joint venture;              (8)   any encumbrance or restriction with respect to a Restricted Subsidiary (or any  of its property or assets) imposed pursuant to an agreement entered into for the direct or indirect sale or  disposition to a Person of all or substantially all the Capital Stock or assets of such Restricted Subsidiary  (or  the  property  or  assets  that  are  subject  to  such  restriction)  pending  the  closing  of  such  sale  or  disposition;              (9)   customary provisions in leases, licenses, joint venture agreements and other  similar agreements and instruments entered into in the ordinary course of business;              (10)  encumbrances or restrictions arising or existing by reason of applicable law or  any applicable rule, regulation, governmental license or order, or required by any regulatory authority  or stock exchange;              (11)  any encumbrance or restriction on cash or other deposits or net worth imposed  by customers under agreements entered into in the ordinary course of business;              (12)  any encumbrance or restriction pursuant to Currency Agreements, Interest Rate  Agreements or Commodity Hedging Agreements;              (13)  any encumbrance or restriction arising pursuant to an agreement or instrument  relating  to  any  Indebtedness  permitted  to be  Incurred  subsequent  to  the Issue  Date pursuant  to  Section 4.04 if the encumbrances and restrictions contained in any such agreement or instrument taken  as a whole are not materially less favorable to the Holders of the Notes than (i) the encumbrances and  restrictions contained in the New Credit Facilities on the Completion Date, together with the security  documents associated therewith, if any, as in effect on or immediately prior to the Completion Date or  (ii) is customary in comparable financings (as determined in good faith by the Issuer) and where, in the  case  of  clause (ii),  the  Issuer  determines  at  the time  of  issuance  of  such  Indebtedness  that  such                                       88  EU-DOCS\26039728.6 





 






   encumbrances or restrictions (x) will not adversely affect, in any material respect, the Issuer’s ability to  make  principal  or  interest  payments  on  the  Notes  as  and  when  they  become  due  or  (y) such  encumbrances  and  restrictions  apply  only  if  a  default  occurs  in  respect  of  a  payment  or  financial  covenant relating to such Indebtedness;              (14)  any  encumbrance  or  restrictions  arising  in  connection  with  any  Purchase  Money  Note,  other  Indebtedness  or  a  Qualified Receivables  Financing  that,  in  the  good  faith  determination of an Officer or the Board of Directors of the Issuer, are necessary or advisable to effect  such Qualified Receivables Financing; or              (15)  any encumbrance or restriction existing by reason of any Lien permitted under  Section 4.06.   Section 4.08 Limitation on Sales of Assets and Subsidiary Stock.        (a)   The Issuer will not, and will not permit any of its Restricted Subsidiaries to, make any  Asset Disposition unless:              (1)   the  Issuer  or  such  Restricted  Subsidiary,  as  the  case  may  be,  receives  consideration (including by way of relief from, or by any other Person assuming responsibility for, any  liabilities, contingent or otherwise) at least equal to the fair market 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 Issuer, of the shares and assets subject to such Asset  Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);  and              (2)   in any such Asset Disposition, or series of related Asset Dispositions (except  to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the 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  responsibility  for,  any  liabilities,  contingent  or  otherwise, other than Indebtedness), together with all other Asset Dispositions since the Issue Date  (except to the extent any such Asset Disposition was a Permitted Asset Swap) on a cumulative basis  received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash, Cash  Equivalents or Temporary Cash Investments.        (b)   After  the  receipt  of  Net  Available  Cash from  an  Asset  Disposition, the  Issuer or  a  Restricted Subsidiary, as the case may be, may apply such Net Available Cash directly or indirectly (at  the option of the Issuer or such Restricted Subsidiary):              (1)   within 365 days from the later of (A) the date of such Asset Disposition and  (B) the receipt of such Net Available Cash (i) to prepay, repay, purchase or redeem any 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 clause (i),  the  Issuer  or  such  Restricted  Subsidiary  will retire  such  Indebtedness and  will  cause  the  related  commitment  (if  any)  (except in the case of any revolving Indebtedness) to be permanently reduced in an amount equal to the  principal amount so prepaid, repaid, purchased or redeemed; (ii) unless included in this clause (i), to  prepay, repay, purchase or redeem any Pari Passu Indebtedness of the Issuer or a Subsidiary Guarantor  that  is  secured  in  whole  or  in  part  by  a  Lien  on  the  Notes  Collateral  (including  by  virtue  of  the  Intercreditor Agreement or an Additional Intercreditor Agreement), which Lien ranks pari passu with  the Liens securing the Notes, at a price of no more than 100% of the principal amount of such Pari  Passu  Indebtedness  plus  accrued  and  unpaid  interest  to  the  date  of  such  prepayment,  repayment,  purchase or redemption; provided that the Issuer or such Subsidiary Guarantor, as applicable, shall  prepay,  redeem,  repay  or  repurchase  Pari  Passu  Indebtedness  that  is  Public  Debt  pursuant  to  this  clause (ii) only if the Issuer or such Subsidiary Guarantor purchases through open-market purchases at  a price equal to or higher than 100% of the principal amount thereof, or makes an offer to the Holders  of the Notes to purchase their Notes at a purchase price in cash equal to at least 100% of the principal                                       89  EU-DOCS\26039728.6 





 






   amount of such  Notes, plus  accrued and unpaid interest to, but not including, the  date of purchase  (subject to the right of Holders of record on the relevant record date to receive interest due on the  relevant interest payment date) for, in each case, an aggregate principal amount of Notes at least equal  to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum  of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount  outstanding  of  such  Pari  Passu  Indebtedness;  (iii) to  prepay,  repay,  purchase  or  redeem any  Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor or any Indebtedness that is  secured  on  assets which  do  not  constitute  Notes  Collateral (in  each  case, other  than  Subordinated  Indebtedness  of  the  Issuer  or  a Subsidiary Guarantor  or  Indebtedness  owed  to  the  Issuer  or  any  Restricted Subsidiary); (iv) to purchase the Notes through open-market purchases at a price equal to or  higher than 100% of the principal amount thereof, or make an offer to all holders of the Notes at a  purchase price in cash equal to at least 100% of the principal amount of the Notes, plus accrued and  unpaid interest to, but not including, the date of purchase (subject to the right of Holders of record on  the relevant record date to receive interest due on the relevant interest payment date) or (v) to redeem  the Notes as described under Section 3.07;              (2)   to the  extent the  Issuer or such Restricted Subsidiary elects,  to invest in or  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 by the Issuer or another  Restricted  Subsidiary)  within 365 days  from  the  later  of  (i) the  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 binding agreement or a commitment approved by the Board of  Directors of the Issuer that is executed or approved within such time will satisfy this requirement, so  long as such investment or commitment to invest is consummated within 180 days of such 365th day;              (3)   to make a capital expenditure within 365 days from the later of (A) the date of  such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that any  such capital expenditure made pursuant to a definitive binding agreement or a commitment approved  by the Board of Directors of the Issuer that is executed or approved within such time will satisfy this  requirement, so long as such investment is consummated within 180 days of such 365th day; or              (4)   any combination of clauses (1) through (3) of Section 4.08(b),   provided that,  pending  the  final  application  of  any  such  Net  Available  Cash  in  accordance  with  clauses (1), (2), (3) or (4) of Section 4.08(b), the Issuer and the Restricted Subsidiaries may temporarily  reduce Indebtedness or otherwise invest such Net Available Cash in any manner not prohibited by this  Indenture.        (c)   Any Net Available  Cash  from Asset Dispositions  that is  not applied or invested  or  committed to be applied or invested as provided in Section 4.08(b) will be deemed to constitute “Excess  Proceeds.” On the 366th day (or the 546th day, in the case of any Net Available Cash committed to be  used pursuant to a definitive binding agreement or commitment approved by the Board of Directors of  the Issuer pursuant to clause (2) or (3) of Section 4.08(b)) after the later of (A) the date of such Asset  Disposition and (B) the receipt of such Net Available Cash, if the aggregate amount of Excess Proceeds  exceeds $50 million, the Issuer will be required within ten (10) Business Days thereof to make an offer  (“Asset Disposition Offer”) to all holders of the Notes and, to the extent the Issuer or a Subsidiary  Guarantor elects or the Issuer or a Subsidiary Guarantor is required by the terms of other outstanding  Pari Passu Indebtedness, to all holders of such other outstanding Pari Passu Indebtedness to purchase  the maximum principal amount of such Notes and any such Pari Passu Indebtedness to which the Asset  Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect  of the Notes in an amount equal to (and, in the case of any Pari Passu Indebtedness, an offer price of no  more than) 100% of the principal amount of such Notes and 100% of the principal amount of Pari Passu  Indebtedness, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of  purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the  Pari Passu Indebtedness, as applicable, and in the case of the Notes, in minimum denominations of                                       90  EU-DOCS\26039728.6 





 






   $200,000 and in integral multiples of $1,000 in excess thereof. No such purchase in part shall reduce  the principal amount at maturity of the Notes held by any holder to below $200,000. The Issuer may  satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by  making an Asset Disposition Offer with respect to such Net Available Cash prior to the time period that  may be required by this Indenture with respect to all or a part of the available Net Available Cash (the  “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”).        (d)   To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly  tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess  Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Issuer and the Restricted  Subsidiaries may use any remaining Excess Proceeds (or, in the case of an Advance Offer, the Advance  Portion) for general corporate purposes, to the extent not prohibited by the other covenants contained  in this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition  Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively,  exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the  Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) shall be allocated among  the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate  principal amount of tendered Notes and Pari Passu Indebtedness. For the purposes of calculating the  principal amount  of  any  such  Indebtedness  not  denominated  in  dollars,  such  Indebtedness shall be  calculated by converting any such principal amounts into their Dollar Equivalent determined as of a  date selected by the Issuer that is within the Asset Disposition Offer Period (as defined below). Upon  completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero, and in  the case of an Advance Offer, the amount of Net Available Cash the Issuer is offering to apply in such  Advance Offer shall be excluded in subsequent calculations of Excess Proceeds.        (e)   To the extent that any portion of Net Available Cash payable in respect of the Notes is  denominated in a currency other than dollars, the amount thereof payable in respect of the Notes shall  not exceed the net Dollar Equivalent of the amount that is actually received by the Issuer.        (f)   The Asset Disposition Offer, in so far as it relates to the Notes, will remain open for a  period of not less than 20 Business Days following its commencement or such shorter period of time  required to comply with Section 14(e) of the Exchange Act and any other applicable securities laws or  regulations in connection with the Asset Disposition Offer (the “Asset Disposition Offer Period”). No  later than five (5) Business Days after the termination of the Asset Disposition Offer Period (the “Asset  Disposition Purchase Date”), the Issuer will purchase the principal amount of Notes and, to the extent  it elects, Pari Passu Indebtedness required to be purchased by it pursuant to this Section 4.08 (the “Asset  Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount has been so validly  tendered, all Notes and Pari Passu Indebtedness validly tendered in response to the Asset Disposition  Offer.        (g)   On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful,  accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of  Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu Indebtedness so validly tendered  and not properly withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset Disposition  Offer  Amount  has  been  validly  tendered  and  not  properly  withdrawn,  all  Notes  and  Pari  Passu  Indebtedness so validly tendered and not properly withdrawn and, in the case of the Notes, in minimum  denominations of $200,000 and in integral multiples of $1,000 in excess thereof.        (h)   The Issuer will deliver to the Trustee an Officer’s Certificate stating that such Notes or  portions  thereof  were  accepted  for  payment  by  the  Issuer  in  accordance  with  the  terms  of  this  Section 4.08. The Issuer or the Paying Agent, as the case may be, will promptly (but in any case not  later than five (5) Business Days after termination of the Asset Disposition Offer Period) mail or deliver  to each tendering Holder of Notes an amount equal to the purchase price of the Notes so validly tendered  and not properly withdrawn by such Holder, and accepted by the Issuer for purchase, and the Issuer will  promptly issue a new Note (or, in the case of Global Notes, cause the Paying Agent to reduce the                                       91  EU-DOCS\26039728.6 





 






   aggregate principal amount and amend the applicable Global Note pursuant to Section 2.06(h) hereof  and in the case of Definitive Registered Notes, deliver or cause to be delivered to the relevant Registrar  for cancellation all Definitive Registered Notes accepted for purchase by the Issuer), and the Trustee,  upon receipt of an Officer’s Certificate from the Issuer, will, via an authenticating agent, authenticate  and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder, in a  principal amount equal to any unpurchased portion of the Note surrendered; provided that each such  new Note will be in a principal amount with a minimum denomination of $200,000. Any Note not so  accepted will be promptly mailed or delivered (or transferred by book-entry) by the Issuer to the Holder  thereof.        (i)   For the purposes of Section 4.08(a)(2), the following will be deemed to be cash:              (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  (as  recorded on the balance sheet of the Issuer or any Restricted Subsidiary or in the footnotes thereto, or  if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been  reflected on the Issuer’s or such Restricted Subsidiary’s balance sheet or in the footnotes thereof if such  incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in  good  faith  by  the  Issuer)  of  the  Issuer  or  any  Restricted  Subsidiary  (other  than  Subordinated  Indebtedness of the Issuer or a Subsidiary Guarantor) and the release of the Issuer or such Restricted  Subsidiary from all liability on such Indebtedness in connection with such Asset Disposition;              (2)   securities, notes or other obligations received by the Issuer or any Restricted  Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash  or Cash Equivalents within 180 days following the closing of such Asset Disposition;              (3)   Indebtedness  of  any  Restricted  Subsidiary  that  is  no  longer  a  Restricted  Subsidiary as a result of such Asset Disposition, to the extent that the Issuer and each other Restricted  Subsidiary  (as  applicable)  are  released  from  any  Guarantee  of  payment  of  such  Indebtedness  in  connection with such Asset Disposition;              (4)   consideration  consisting  of  Indebtedness  of  the  Issuer  or  a Subsidiary  Guarantor (other than Subordinated Indebtedness) received after the Issue Date from Persons who are  not the Issuer or any Restricted Subsidiary; and              (5)   any  Designated  Non-Cash  Consideration  received  by  the  Issuer  or  any  Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together  with all other Designated Non-Cash Consideration received pursuant to this Section 4.08 that is at that  time outstanding, not to exceed (at the time of the receipt of such Designated Non-Cash Consideration  or, at the Issuer’s option, at the time of contractually agreeing to such Asset Disposition) the greater of  $55 million and 25% of Pro Forma EBITDA for the most recently ended four full fiscal quarters for  which  internal  financial  statements  of  the  Issuer  are  available  immediately  preceding  the  date  of  determination (with the fair market value of each item of Designated Non-Cash Consideration being  measured at the time received or, at the option of the Issuer, on the date of contractually agreeing to the  relevant Asset Disposition and without giving effect to subsequent changes in value).        (j)   The Issuer will comply, to the extent applicable, with the requirements of Section 14(e)  of the Exchange Act and any other securities laws or regulations in connection with the repurchase of  Notes pursuant to this Indenture. To the extent that the provisions of any securities laws or regulations  conflict with provisions of this Section 4.08, the Issuer will comply with the applicable securities laws  and regulations and will not be deemed to have breached its obligations under this Indenture by virtue  of any conflict.   Section 4.09 Limitation on Affiliate Transactions.                                        92  EU-DOCS\26039728.6 





 






        (a)   The Issuer will not, and will not permit any of its Restricted Subsidiaries to, 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 service) with any Affiliate of the Issuer  (any  such  transaction  or  series  of  related  transactions  being “Affiliate  Transactions”)  involving  aggregate value in excess of the greater of $20 million and 10.0% of Pro Forma EBITDA for the most  recently ended four full fiscal quarters for which internal financial statements of the Issuer are available  immediately preceding the date of determination unless:              (1)   the terms of such Affiliate Transaction taken as a whole are not materially less  favorable to the Issuer or such Restricted Subsidiary, as the case may be,  than those that could be  obtained in a comparable transaction at the time of such transaction or the execution of the agreement  providing for such transaction in arm’s-length dealings with a Person who is 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, the Issuer has conclusively determined in good  faith to be fair to the Issuer or such Restricted Subsidiary; and              (2)   in the event such Affiliate Transaction involves an aggregate value in excess 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 Issuer resolving that such  transaction complies with Section 4.09(a)(1). An Affiliate Transaction shall be deemed to have satisfied  the requirements set forth in this clause (2) if either (x) such Affiliate Transaction is approved by a  majority of the Disinterested Directors or (y) the Issuer or any of its Restricted Subsidiaries, as the case  may  be,  delivers  to  the  Trustee  a  letter  from  an  Independent  Financial  Advisor  stating  that  such  transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or stating  that the terms are not materially less favorable to the Issuer or its relevant Restricted Subsidiary than  those  that  would  have  been  obtained  in  a  comparable  transaction  by  the  Issuer  or  such  Restricted  Subsidiary with an unrelated Person on arm’s-length basis.        (b)   Section 4.09(a) will not apply to:              (1)   any Restricted Payment permitted to be made pursuant to Section 4.05, any  Permitted  Payments  (other  than  pursuant  to  Section 4.05(b)(9)(B) or  Section 4.05(b)(20))  or  any  Permitted  Investment  (other  than  Permitted  Investments  as  defined  in  clauses (1)(b)  or (2) of  the  definition thereof);              (2)   any issuance or sale of Capital Stock, options, other equity-related interests or  other securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the  funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or  benefit plan, program, agreement or arrangement, related trust or other similar agreement and other  compensation arrangements, options, warrants or other rights to purchase Capital Stock of the Issuer,  any  Restricted  Subsidiary  or  any  Parent,  restricted  stock  plans,  long-term  incentive  plans,  stock  appreciation  rights  plans,  participation  plans  or  similar  employee  benefits  or  consultants’ plans  (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar  plans, programs or arrangements) or indemnities provided on behalf of officers, employees, directors  or consultants approved by the Board of Directors of the Issuer, in each case in the ordinary course of  business;              (3)   any Management Advances and any waiver or transaction with respect thereto;              (4)   any transaction between or among the Issuer and any Restricted Subsidiary (or  entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among the  Issuer, Restricted Subsidiaries or any Receivables Entity;              (5)   the  payment  of  reasonable  fees  and  reimbursement  of  expenses  to,  and  customary indemnities and employee benefit and pension expenses provided on behalf of, directors,  officers,  consultants  or  employees  of  the  Issuer,  any  Restricted  Subsidiary  or  any  Parent  (whether                                       93  EU-DOCS\26039728.6 





 






   directly or indirectly and including through any Person owned or controlled by any of such directors,  officers or employees);              (6)   the  Transactions  and  any  Permitted  Reorganization; provided  that any  transactions with the SFS Business that are not in connection with the SFS Business Transfer shall not  be permitted by this clause (6);              (7)   execution,  delivery  and  performance  of  any  Tax  Sharing  Agreement  or  the  formation and maintenance of any consolidated group for tax, accounting or management purposes in  the ordinary course of business;              (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 limitation,  pursuant to joint venture arrangements), which are fair to the Issuer or the relevant Restricted Subsidiary  in the reasonable determination of the Board of Directors or an officer of the Issuer or the relevant  Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been  obtained at such time from an unaffiliated party;              (9)   any transaction in the ordinary course of business between or among the Issuer  or any Restricted Subsidiary and any Affiliate of the Issuer or an Associate or similar entity (in each  case,  other  than  an  Unrestricted  Subsidiary)  that  would  constitute  an  Affiliate  Transaction  solely  because the Issuer or a Restricted Subsidiary or any Affiliate of the Issuer or a Restricted Subsidiary or  any Affiliate of any Permitted Holder owns an equity interest in or otherwise controls such Affiliate,  Associate or similar entity;              (10)  (a) issuances  or  sales  of  Capital  Stock  (other  than  Disqualified  Stock  or  Designated Preference Shares) of the Issuer or options, warrants or other rights to acquire 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 of the members of the Board of  Directors  of  the  Issuer  in  their  reasonable  determination  and  (b) any  amendment,  waiver  or  other  transaction  with  respect  to  any  Subordinated  Shareholder  Funding  in  compliance  with  the  other  provisions of this Indenture, the Intercreditor Agreement or any Additional Intercreditor Agreement, as  applicable;              (11)  without duplication in respect of payments made pursuant to the definition of  Parent  Expenses,  (a) payments  by  the  Issuer  or  any  Restricted  Subsidiary  to  any  Permitted  Holder  (whether  directly  or  indirectly,  including  through  any  Parent)  of  annual  management,  consulting,  monitoring or advisory fees and related expenses in an aggregate amount not to 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 Issuer 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) and; (b) customary payments by the Issuer or any Restricted Subsidiary to  any  Permitted  Holder  (whether  directly  or  indirectly, including  through  any  Parent)  for  financial  advisory,  financing,  underwriting  or  placement  services  or  in  respect  of  other  investment  banking  activities, including in connection with acquisitions or divestitures, which payments in respect of this  clause (b)  are  approved  by  a  majority  of  the  Board  of  Directors  of  the  Issuer  in  good  faith;  and  (c) payments of all fees and expenses related to the Transactions and any Permitted Reorganization;              (12)  any transaction effected as part of a Qualified Receivables Financing and other  Investments in Receivables Entity consisting of cash or Securitization Assets and execution, delivery  and performance of any Servicer Agreement in connection with the SFS Business Transfer; provided  that for avoidance of doubt any Servicer Agreement entered into by the Issuer or a Restricted Subsidiary  with the SFS Business other than in connection with the SFS Business Transfer shall not be permitted  by this clause (12);                                        94  EU-DOCS\26039728.6 





 






              (13)  any  participation  in  a  rights  offer  or  public  tender  or  exchange  offers  for  securities or debt instruments issued by the Issuer or any of its Subsidiaries that are conducted on arm’s- length  terms  and  provide  for  the  same  price  or  exchange  ratio,  as  the  case  may  be,  to  all  holders  accepting such rights, tender or exchange offer;              (14)  transactions  between  the  Issuer  or  any  Restricted  Subsidiary  and  any  other  Person that would constitute an Affiliate Transaction solely because a director of such other Person is  also a director of the Issuer or any Parent; provided, however, that such director abstains from voting  as a director of the Issuer or such Parent, as the case may be, at any board meeting approving such  transaction, on any matter including such other Person;              (15)  payments to and from, and transactions with, any joint ventures entered into in  the ordinary course of business or consistent with past practices (including, without limitation, any cash  management activities related thereto);               (16)  commercial  contracts  (excluding  the  Permitted  Sale  and  Leaseback  Transactions but including franchising agreements, office space and other real estate lease agreements,  business services related agreements or other similar arrangements) between an Affiliate of the Issuer  and the Issuer or any Restricted Subsidiary that are on arm’s length terms or on a basis that senior  management of the Issuer reasonably believes allocates costs fairly;              (17)  (i)  transactions  with  Affiliates  solely  in  their  capacity  as  holders  of  Indebtedness,  Equity  Interests  of  the  Issuer,  Parent  or  any  of  its  Subsidiaries  or  Subordinated  Shareholder  Debt  (and  payment  of  reasonable  out-of-pocket  expenses  incurred  by  such  Permitted  Holders in connection therewith) so long as the opportunity to participate in such transaction is offered  by the Issuer, Parent or such Restricted Subsidiary generally to other investors on the same or more  favorable  terms;  and  (ii) payments  to  Permitted  Holders  and  holders  of  shares  of  Capital  Stock  of  BidFair  Management,  LP  in  respect  of  securities  or  Indebtedness  of  the  Issuer  or  any  Restricted  Subsidiary contemplated in the foregoing clause (i) or that were acquired from Persons other than the  Restricted Subsidiaries, in each case, in accordance with the terms of such securities or Indebtedness;  and              (18)  the Permitted Sale and Leaseback Transactions.   Section 4.10 Reports.        (a)   For so long as any Notes are outstanding, the Issuer will provide to the Trustee the  following reports:              (1)   within 120 days after the end of the Issuer’s (or, if the Issuer elects to satisfy  its  obligation under this  clause (1) by delivering the  annual reports  of a  Parent in accordance  with  Section 4.10(c), of such Parent) fiscal year beginning with the fiscal year ending December 31, 2019,  annual reports containing the following information: audited consolidated balance sheet of the Issuer as  of the end of the most recent fiscal year (and comparative information as of the end of the prior fiscal  year) and audited consolidated income statements and statements of cash flow of the Issuer for the most  recent fiscal year (and comparative information as of the end of the prior fiscal year), including complete  footnotes  to  such  financial  statements  and  the  report  of  the  independent  auditors  on  the  financial  statements; unaudited pro forma income statement information and balance sheet information of the  Issuer (which, for the avoidance of doubt, shall not include the provision of a full income statement or  balance sheet to the extent not reasonably available), together with explanatory footnotes, for (i) any  acquisition or disposition by the Issuer or a Restricted Subsidiary that, individually or in the aggregate  when considered with all other acquisitions or dispositions that have occurred since the beginning of  the  most  recently  completed  fiscal  year  as  to  which  such  annual  report  relates,  represent  greater  than 20% of the consolidated revenues, EBITDA and/or adjusted operating cash flow, or assets of the  Issuer on a pro forma consolidated basis or (ii) recapitalizations by the Issuer or a Restricted Subsidiary,  in each case, that have occurred during the most recently completed fiscal year as to which such annual                                       95  EU-DOCS\26039728.6 





 






   report  relates  (unless  such  pro  forma  information  has  been  provided  in  a  prior  report  pursuant  to  clause (2) or (3) of this Section 4.10(a)); provided that such pro forma financial information will be  provided only to the extent not provided in a previous report pursuant to clause (2) or (3) of this Section  4.10(a) and to the extent available without unreasonable expense and in the case pro forma financial  information is not provided, the Issuer will provide, in the case of a material acquisition, to the extent  available to the Issuer or a Restricted Subsidiary without unreasonable expense, financial statements of  the acquired company for the most recent fiscal year, and in the case of a material disposition, financial  statements of the business or assets comprising the disposition perimeter for the most recent fiscal year  which, in each case, may be unaudited; (c) an operating and financial review of the audited financial  statements, including a discussion of the results of operations, financial condition, and liquidity and  capital resources of the Issuer, and a discussion of material commitments and contingencies and critical  accounting policies; (d) description of the business, management and shareholders of the Issuer (to the  extent not previously reported pursuant to clause (2) or (3) of this Section 4.10(a)), all material affiliate  transactions  and  a  description  of  all  material  contractual  arrangements,  including  material  debt  instruments; and  (e) a  description of material risk factors  and material recent developments  (to the  extent not previously reported pursuant to clause (2) or (3) of this Section 4.10(a));              (2)   within 60 days following the end of the first three fiscal quarters in each fiscal  year of the Issuer (or, if the Issuer elects to satisfy its obligation under this clause (2) by delivering the  quarterly reports of a Parent in accordance with Section 4.10(c), of such Parent) beginning with the  fiscal quarter ending September 30, 2019, all quarterly reports of the Issuer containing, to the extent  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 most recent quarter year- to-date period ending on the date of the unaudited condensed balance sheet, and the comparable prior  year periods, together with condensed footnote disclosure (provided that if the Acquisition is completed  after  September 30,  2019,  the  Issuer  shall  provide  the  unaudited  condensed  consolidated  financial  statements of the Target for such period unless such financial statements have been filed with the SEC);  (b) beginning with the fiscal quarter ending March 31, 2020, unaudited pro forma income 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 reasonably available), together  with explanatory footnotes, for any acquisition or disposition by the Issuer or a Restricted Subsidiary  that, individually or in the aggregate when 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  and/or  adjusted  operating  cash  flow,  or  assets  of  the  Issuer  on  a  pro  forma  consolidated basis (unless such pro forma information has been provided in a prior report pursuant to  Section 4.10(a)(3)); provided that such pro forma financial information will be provided only to the  extent available without unreasonable expense, and in the case pro forma financial information is not  provided the Issuer will provide, in the case of a material acquisition to the extent available to the Issuer  or a Restricted Subsidiary without unreasonable expense, financial statements of the acquired company  for the most recent fiscal year, and in the case of a material disposition, financial statements of the  business or assets comprising the disposition perimeter for the most recent fiscal year which, in each  case,  may  be  unaudited;  (c) a  summary  operating  and  financial  review  of  the  unaudited  financial  statements, including a discussion of revenues, EBITDA and/or adjusted operating cash flow, capital  expenditures,  operating  cash  flow,  and  material  changes  in  liquidity  and  capital  resources,  and  a  discussion of material changes not in the ordinary course of business in commitments and contingencies  since the most recent report (to the extent not previously reported pursuant to clause (3) of this Section  4.10(a));  and  (d) material  recent  developments  (to  the  extent  not  previously  reported  pursuant  to  Section 4.10(a)(3)); and              (3)   promptly after the occurrence of such event, information with respect to (a) any  change  in  the  independent  public  accountants  of  the  Issuer,  (b) any  material  acquisition,  disposal,  merger  or  similar transaction  or  (c) any  development  determined  by  an  Officer  of  the  Issuer to  be  material to the business of the Issuer and its Restricted Subsidiaries (taken as a whole).                                        96  EU-DOCS\26039728.6 





 






        (b)   For  the  avoidance  of  doubt,  in  no  event  will  any  reports  provided  pursuant  to  Section 4.10(a):              (1)   be required to comply with:                    (A)   Section 302,  Section 404  or  Section 906  of  the  Sarbanes-Oxley  Act             of 2002,  or  related  Items 307  and 308  of  Regulation S-K  under  the  Securities  Act             (“Regulation S-K”);                    (B)   Rule 3-10 of Regulation S-X under the Securities Act (“Regulation S-            X”)  or  contain separate  financial  statements  for  the  Issuer,  the  Guarantors  or  other             Subsidiaries the shares of which may be pledged to secure the Notes or any Guarantee             that would be required under Section 3-16 of Regulation S-X;                    (C)   Rule 11-01  of  Regulation S-X, to give pro  forma effect  to  the             Transactions or contain  all  purchase  accounting  adjustments  relating  to  the             Transactions;                     (D)   Regulation G under the Exchange Act or Item 10(e) of Regulation S-K             with respect to any non-GAAP financial measures contained therein; or              (2)   be required to include trade secrets and other confidential information that is  competitively sensitive in the good faith and reasonable determination of the Issuer.        (c)   Notwithstanding the foregoing, the Issuer may satisfy its obligations under clauses (1),  (2) and (3) of Section 4.10(a) by delivering the corresponding annual, quarterly or other reports of a  Parent; provided that to the extent that the Issuer is not the reporting entity and material differences  exist  between  the  management,  business,  assets,  shareholding  or  results  of  operations  or  financial  condition of the Issuer and such Parent, the annual and quarterly reports shall give a reasonably detailed  description of such differences or shall include the consolidated balance sheet, income statements and  cash flow statement of the Issuer and its subsidiaries.        (d)   The  Issuer  will  be  deemed  to  have  furnished  the  reports  referred  to  in clauses (1),  (2) and (3) of Section 4.10(a) if the Issuer or a Parent has filed reports containing such information with  the SEC or posted such reports on its website. The Trustee shall have no responsibility to determine if  and when any of the above reports have been filed or posted on any website. Delivery of the above  reports to the Trustee is for informational purposes only and the Trustee’s receipt of such reports will  not  constitute  constructive  notice  of  any  information  contained  therein  or  determinable  from  information contained therein, including the Issuer’s or any other parties’ compliance with any of its  covenants in this Indenture (as to which the Trustee will be entitled to rely exclusively on Officer’s  Certificates that are delivered).        (e)   All financial statement information shall be prepared in accordance with GAAP as in  effect on the date of such report or financial statement (or otherwise on the basis of GAAP as then in  effect) and on a consistent basis for the periods presented; provided, however, that the reports set forth  in clauses (1), (2) and (3) of Section 4.10(a) may in the event of a change in GAAP, present earlier  periods on a basis that applied to such periods. Except as provided for in Section 4.10(f) below, no  report need include separate financial statements for the Issuer or Subsidiaries of the Issuer or any  disclosure with respect to the results of operations or any other financial or statistical disclosure not of  a type included in the Offering Memorandum and, subject to the Issuer’s election to apply IFRS, in no  event shall IFRS information or reconciliation to IFRS be required.        (f)   At any time if any Subsidiary of the Issuer is an Unrestricted Subsidiary and any such  Unrestricted  Subsidiary  or  group  of  Unrestricted  Subsidiaries,  if  taken  together  as  one  Subsidiary,  constitutes a Significant Subsidiary, then the quarterly and annual financial information required by  clauses (1) and (2) of Section 4.10(a) will include a reasonably detailed presentation, either on the face                                       97  EU-DOCS\26039728.6 





 






   of the financial statements or in the footnotes thereto, of the financial condition and results of operations  of  the  Issuer  and  its  Restricted  Subsidiaries  separate  from  the  financial  condition  and  results  of  operations of the Unrestricted Subsidiaries of the Issuer; provided that with respect to the Issue Date  Unrestricted  Subsidiaries,  the  requirements  of  this  clause (f) shall  be  satisfied  by  the  inclusion  of  information relating to the Issue Date Unrestricted Subsidiaries substantially similar to that provided  in, or included by reference in, the Offering Memorandum.        (g)   Substantially concurrently with the issuance to the Trustee of the reports specified in  clauses (1), (2) and (3) of Section 4.10(a), the  Issuer shall also (A) use  its  commercially reasonable  efforts (i) to post copies of such reports on such website as may be then maintained by the Issuer and  its Subsidiaries or any Parent or (ii) otherwise to provide substantially comparable public availability  of such reports (as determined by the Issuer in good faith) or (B) to the extent the Issuer determines in  good faith that such reports cannot be made available in the manner described in the preceding clause  (A) owing to applicable law or after the use of its commercially reasonable efforts, furnish such reports  to the Holders and, upon their request, prospective purchasers of the Notes.        (h)   For so long as the Notes remain outstanding and during any period during which the  Issuer is  not subject to Section 13 or 15(d) of the  Exchange  Act nor exempt therefrom pursuant to  Rule 12g3-2(b), the Issuer shall furnish to the Holders and holders of beneficial interests in the Notes  and, upon their request, prospective purchasers of the Notes or prospective and purchasers of beneficial  interests in the Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the  Securities Act.        (i)   The Trustee shall have no obligation to determine if and when the Issuer’s financial  statements or reports are publicity available and accessible electronically. Delivery of these reports,  information and documents to the Trustee is for informational purposes only and the Trustee’s receipt  of  any  of  those  will  not  constitute  constructive  notice  of  any  information  contained  therein  or  determinable from information contained therein, including the  Issuer’s compliance with any of its  covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).   Section 4.11 Suspension of Covenants on Achievement of Investment Grade Status.        If on any date following the Issue Date, the Notes have achieved Investment Grade Status and  no Default or Event of Default has occurred and is continuing (a “Suspension Event”), then the Issuer  shall notify the Trustee of these events and beginning on that day and continuing until such time, if any,  at which the Notes cease to have Investment Grade Status (the “Reversion Date”), the following sections  will not apply to the Notes: Section 4.04, Section 4.05, Section 4.07, Section 4.08, Section 4.09, Section  4.18, Section 4.21 and Section 5.01(a)(3) and any related default provision of this Indenture will cease  to be effective and will not be applicable to the Issuer and the Restricted Subsidiaries. Such Sections  and any related default provisions will again apply according to their terms from the first day on which  a Suspension Event ceases to be in effect. Such Sections will not, however, be of any effect with regard  to actions of the Issuer properly taken during the continuance of the Suspension Event, and Section 4.05  will be interpreted as if it has been in effect since the date of this Indenture except that no Default will  be deemed to have occurred solely by reason of a Restricted Payment made while Section 4.05 was  suspended. On the Reversion Date, all Indebtedness Incurred during the continuance of the Suspension  Event will be classified, at the Issuer’s option, as having been Incurred pursuant to Section 4.04(a) or  Section 4.04(b) (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the  Reversion Date and after giving effect to Indebtedness  Incurred  prior to the  Suspension Event and  outstanding on the Reversion Date). To the extent such Indebtedness would not be so permitted to be  Incurred  under  Section 4.04(a) or  Section 4.04(b),  such  Indebtedness  will  be  deemed  to  have  been  outstanding on the Issue Date, so that it is classified as permitted under Section 4.04(b)(4)(b). The Issuer  shall give the Trustee written notice of any Suspension Event and in any event not later than five (5)  Business Days after such Suspension Event has occurred. The Issuer shall give the Trustee written  notice of any occurrence of a Reversion Date not later than five (5) Business Days after such Reversion                                        98  EU-DOCS\26039728.6 





 






   Date. Absent such written notice the Trustee shall be entitled to assume that no Suspension Event or  the occurrence of any Reversion Date has occurred.   Section 4.12 [Reserved].   Section 4.13 [Reserved].   Section 4.14 Compliance Certificate.        The  Issuer  shall  deliver  to  the  Trustee,  within 120 days  after  the  end  of  each  fiscal  year  (beginning with the fiscal year ending December 31, 2019), an Officer’s Certificate indicating whether  the signers thereof know of any Default that occurred during the previous year. The Issuer shall deliver  to the Trustee, within 30 days after the occurrence of a Default or Event of Default a written notice of  any events of which it is aware which would constitute certain Defaults, their status and what action the  Issuer is taking or proposes to take with respect thereto.        The Trustee shall not be deemed to have knowledge of any Default except any Default under  clauses (1) or (2) of Section 6.01(a)) or any other Default of which a Responsible Officer shall have  received written notification in accordance with Section 12.01 or obtained actual knowledge.   Section 4.15 [Reserved].   Section 4.16 Additional Amounts.        (a)   All payments made by or on behalf of the Issuer under or with respect to the Notes  (whether or not in the form of definitive notes) or any of the Guarantors, in each case, solely under or  with respect to a Guarantee will be made free and clear of and without withholding or deduction for, or  on account of, any present or future Taxes unless the withholding or deduction of such Taxes is then  required by law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by  or on behalf of any jurisdiction in which the Issuer or any Guarantor, is then incorporated, organized,  engaged in business for tax purposes or otherwise considered to be resident for tax purposes, or any  political subdivision or governmental authority thereof or therein having power to tax or any jurisdiction  from or through which payment is made, excluding the United States and any political subdivision or  taxing authorities thereof or therein (each, a “Tax Jurisdiction”), will at any time be required to be made  from any payments made by or on behalf of the Issuer under or with respect to the Notes or any of the  Guarantors  with  respect  to  any  Guarantee,  including,  without  limitation,  payments  of  principal,  redemption  price,  purchase  price,  interest  or  premium,  the  Issuer  or  the  relevant  Guarantor,  as  applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary in order  that the net amounts received in respect of such payments (including payments of Additional Amounts)  after such withholding, or deduction will equal the respective amounts that would have been received  in respect of such payments in the absence of such withholding or deduction; provided, however, that  no Additional Amounts will be payable with respect to:              (1)   any Taxes that would not have been imposed but for the holder or beneficial  owner of the Notes being a citizen, resident or national of, incorporated in or carrying on a business in  the relevant Tax Jurisdiction in which such Taxes are imposed, or having any other present or former  connection with the relevant Tax Jurisdiction in which such Taxes are imposed other than by the mere  acquisition or holding of any note or the enforcement or receipt of payment under or in respect of any  note or any Guarantee;              (2)   any  Taxes  imposed  or  withheld  as  a  result  of  the  failure  of  the  holder  or  beneficial owner of the Notes to comply with any written request, made to that holder or beneficial  owner in writing at least 90 days before any such withholding or deduction would be payable, by the  Issuer or any of the Guarantors to provide timely or accurate information concerning the nationality,  residence or identity of such holder or beneficial owner or to make any valid or timely declaration or  similar claim or satisfy any certification information or other reporting requirements (to the extent such                                       99  EU-DOCS\26039728.6 





 






   holder or beneficial owner is eligible to do so legally and without material burden), which is required  or imposed by a statute, treaty, regulation or administrative practice of the relevant Tax Jurisdiction as  a precondition to exemption from, or reduction in the rate of deduction or withholding of, such Taxes;              (3)   any Taxes that are imposed or withheld as a result of the presentation of any  note for payment (where notes are in the form of definitive notes and presentation is required) more  than 30 days after the relevant payment is first made available for payment to the holder (except to the  extent that the holder would have been entitled to Additional Amounts had the note been presented on  the last day of such 30 day period);              (4)   any estate, inheritance, gift, sale, transfer, personal property or similar Taxes;              (5)   any Taxes which are payable otherwise than by deduction or withholding from  payments made under or with respect to the Notes or any Guarantee;              (6)   any Taxes that were imposed with respect to any payment on a note to any  holder who is a fiduciary or partnership or person other than the sole beneficial owner of such payment  to the extent that no Additional Amounts would have been payable had the beneficial owner of the  applicable note been the holder of such Note;              (7)   any Taxes that are imposed or withheld pursuant to Sections 1471 through 1474  of  the  Code,  as  of  the  issue  date  (or  any  amended  or  successor  version  of  such  sections  that  is  substantively  comparable  and  not  materially  more  onerous  to  comply  with),  any  regulations  promulgated  thereunder,  any  official  interpretations  thereof,  any  similar  law  or  regulation  adopted  pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with  respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or              (8)   any combination of clauses (1) through (7) of this Section 4.16 (a).        (b)   Additional Amounts will also not be payable where, had the beneficial owner of the  Note been the holder of the Note, it would not have been entitled to payment of Additional Amounts  by reason of any of clauses (1) to (8) inclusive of Section 4.16 (a).        (c)   The Issuer and/or the Guarantor, as applicable, will pay and indemnify the holders or  the beneficial owners of any present or future stamp, court or documentary taxes or any other excise or  property taxes, charges or similar levies (including interest and penalties to the extent resulting from a  failure by the Issuer and/or the Guarantor, as applicable, to timely pay amounts due) which arise in any  jurisdiction  from  the  execution,  delivery  or  registration  of  any  Notes  or  any  other  document  or  instrument  referred  to  therein  (other  than  a  transfer  of  the  Notes  other  than  to  or  by  to  the  Initial  Purchasers (as defined in the Offering Memorandum)), or the receipt of any payments with respect to  the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a  Relevant Taxing Jurisdiction or any jurisdiction in which a Paying Agent is located, other than those  resulting from, or required to be  paid in connection with, the  enforcement of the  Notes,  the  Notes  Collateral or any other such document or instrument following the occurrence of any Event of Default  with respect to the Notes.        (d)   If  the  Issuer  or  any  Guarantor,  as  the  case  may  be,  becomes  aware  that  it  will  be  obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or  any Guarantee, the Issuer or the relevant Guarantor, as the case may be, will deliver to the trustee on a  date at least 30 days prior to the date of payment (unless the obligation to pay Additional Amounts  arises after the 30th day prior to that payment date, in which case the Issuer or the relevant Guarantor  shall  notify  the  trustee  promptly  thereafter)  an  officers’  certificate  stating  the  fact  that  Additional  Amounts will be payable and the amount estimated to be so payable. The officers’ certificate must also  set  forth  any  other information  reasonably  necessary  to  enable  the  paying  agent  to  pay  Additional  Amounts on the relevant payment date. The trustee shall be entitled to rely solely on such officers’  certificate as conclusive proof that such payments are necessary. The Issuer or the relevant Guarantor                                       100  EU-DOCS\26039728.6 





 






   will  provide  the  trustee  with  documentation  reasonably  satisfactory  to  the  trustee  evidencing  the  payment of Additional Amounts.        (e)   The Issuer or the relevant Guarantor will make all withholdings and deductions required  by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance  with applicable law. The Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax  receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The  Issuer or the relevant Guarantor will furnish to the holders, within 60 days after the date the payment  of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by  the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain  receipts, receipts are not obtained, other evidence of payments by such entity.        (f)   Whenever  this Indenture  mentions  the  payment  of  amounts  based  on  the  principal  amount,  interest  of  any  other  amount  payable  under,  or  with  respect  to,  any  of  the  Notes  or  any  Guarantee, such mention shall be deemed to include the payment of Additional Amounts to the extent  that, in such context, Additional Amounts are, were or would be payable in respect thereof.        (g)   The obligations contained in this Section 4.16 will survive any termination, defeasance  or discharge of this Indenture, any transfer by a holder or beneficial owner of its notes, and will apply,  mutatis mutandis, to any jurisdiction in which any successor Person to the Issuer or any Guarantor is  then incorporated, organized, engaged in business or resident for tax purposes or any jurisdiction from  or through which any payment under, or with respect to, the Notes (or any Guarantee) is made and any  political subdivision or taxing authority or agency thereof or therein having the power to tax.    Section 4.17 Additional Intercreditor Agreements.        (a)   At the request of the Issuer, and without the consent of Holders, in connection with the  Incurrence by the Issuer or a Restricted Subsidiary of any Indebtedness that is permitted to share the  Notes Collateral pursuant to Section 4.06, the Issuer, the Parent Guarantor or a Restricted Subsidiary,  the Trustee and the Notes Collateral Agent shall enter into with the holders of such Indebtedness (or  their  duly  authorized  Representatives)  an  intercreditor  agreement  (an  “Additional  Intercreditor  Agreement”) or a restatement, amendment or other modification of the existing Intercreditor Agreement  on substantially the same terms as the Intercreditor Agreement (or, as determined in good faith the  Issuer, terms not materially less favorable to the Holders), including containing substantially the same  terms with respect to release of Note Guarantees and priority and release of the Liens over the Notes  Collateral (or, as determined  in good faith by the Issuer, terms  not materially less favorable to the  Holders, it being understood that such restatement, amendment or other modification to provide for  subordinated  security  interests  will  be  deemed  not  to  be  materially  less  favorable  to  the  Holders);  provided that such Additional Intercreditor Agreement will not impose any personal obligations on the  Trustee  or  Notes  Collateral  Agent  or,  in  the  opinion  of  the  Trustee  or  Notes  Collateral  Agent,  as  applicable, adversely affect the rights, duties, liabilities or immunities of the Trustee or Notes Collateral  Agent under this Indenture or the Intercreditor Agreement. Subject to this Section 4.17(a) and to Section  4.17(b), any  such  Additional  Intercreditor  Agreement  may  provide  for  pari  passu  or  subordinated  security interests in respect of any such Indebtedness (to the extent such Indebtedness is permitted to  share the Notes Collateral pursuant to Section 4.06).        (b)   At the written direction of the Issuer and without the consent of Holders, the Trustee  and the Notes Collateral Agent shall from time to time enter into one or more amendments to any  Intercreditor Agreement or Additional Intercreditor Agreement to: (1) cure any ambiguity, omission,  defect or inconsistency of any such agreement, (2) increase the amount or types of Indebtedness covered  by any such agreement that may be Incurred by the Issuer or a Guarantor that is subject to any such  agreement  (including  with  respect  to  any  Intercreditor  Agreement  or  Additional  Intercreditor  Agreement, the addition of provisions relating to new Indebtedness ranking junior in right of payment  to  the  Notes),  (3)  add  Restricted  Subsidiaries  to  the  Intercreditor  Agreement  or  an  Additional  Intercreditor Agreement, (4) further secure the Notes (including Additional Notes), (5) make provision                                       101  EU-DOCS\26039728.6 





 






   for equal and ratable pledges of the Notes Collateral to secure Additional Notes, (6) implement any  Liens permitted by Section 4.06, (7) amend the Intercreditor Agreement or any Additional Intercreditor  Agreement in accordance with the terms thereof; (8) make any change reasonably necessary or desirable  in the good faith determination of the Issuer in order to implement any transaction that is subject to  Section 5.01 and Section 5.02;  or  (9) implement  any  transaction  in  connection  with  the  renewal  extension, refinancing, replacement or increase of Indebtedness that is not prohibited by this Indenture  or make any other change to any such agreement that does not, in the good faith determination of the  Issuer, adversely affect the Holders in any material respect; provided that no such changes shall be  permitted to the extent they affect the ranking of any Note or Note Guarantee, enforcement of Liens  over the Notes Collateral, the application of proceeds from the enforcement of Notes Collateral or the  release of any Note Guarantees or Lien over the Notes Collateral in a manner than would, in the good  faith determination of the Issuer, adversely affect the rights of the holders of the Notes in any material  respect except as otherwise permitted by this Indenture, the Intercreditor Agreement or any Additional  Intercreditor Agreement immediately prior to such change. The Issuer shall not otherwise direct the  Trustee or the Notes Collateral Agent to enter into any amendment to any Intercreditor Agreement  without the consent of the Holders of the majority in aggregate principal amount of the Notes then  outstanding, except as otherwise permitted in Article 9, and the Issuer may only direct the Trustee and  the Notes Collateral Agent to enter into any amendment to the extent such amendment does not impose  any personal obligations on the Trustee or Notes Collateral Agent or, in the opinion of the Trustee or  Notes Collateral Agent, adversely affect their respective rights, duties, liabilities or immunities under  this Indenture or the Intercreditor Agreement or any Additional Intercreditor Agreement.        (c)   In relation to any Intercreditor Agreement or Additional Intercreditor Agreement, at the  request of the Issuer, the Trustee (and Notes Collateral Agent, if applicable) shall consent on behalf of  the Holders to the payment, repayment, purchase, repurchase, defeasance, acquisition, retirement or  redemption  of  any  obligations  subordinated  to  the  Notes  thereby; provided,  however,  that  such  transaction would comply with Section 4.05.         (d)   Each Holder, by accepting a Note, shall be deemed to have agreed to and accepted the  terms  and  conditions  of  the  Intercreditor  Agreement  or  any  Additional  Intercreditor  Agreement  (whether then  entered into or entered into in the  future  pursuant to this Section 4.17), and to have  directed  the Trustee and the  Notes  Collateral Agent to enter into any such Additional Intercreditor  Agreement.   Section 4.18 Impairment of Security Interests.        (a)   The Issuer shall not and shall not permit any Restricted Subsidiary to, take or omit to  take any action that would have the result of materially impairing the security interest with respect to  the Notes Collateral (it being understood that subject to the next succeeding paragraph, the Incurrence  of Permitted Collateral Liens shall under no circumstances be deemed to materially impair the security  interest with respect to the Notes Collateral) for the benefit of the Trustee and the Holders, and the  Issuer shall not and shall not permit any Restricted Subsidiary to, grant to any Person other than the  Notes Collateral Agent (or its delegate), for the benefit of the Trustee and the Holders and the other  beneficiaries described in the Notes Security Documents, the Intercreditor Agreement or any Additional  Intercreditor Agreement, any Lien over any of the Notes Collateral; provided, that, subject to the next  succeeding paragraph, (x) the Issuer and the Restricted Subsidiaries may Incur Permitted Collateral  Liens,  (y)  the  Notes  Collateral  may  be  discharged,  amended,  extended,  renewed,  restated,  supplemented,  released,  modified  or  replaced  in  accordance  with  this Indenture,  the  Intercreditor  Agreement, any Additional Intercreditor Agreement or the applicable Notes Security Documents and  (z) the Issuer and the Restricted Subsidiaries may consummate any other transaction permitted under  Section 5.01 and Section 5.02.        (b)   Notwithstanding  Section 4.18(a),  nothing  in  this Section 4.18 shall  restrict  the  discharge  and  release  of any Lien over the  Notes Collateral in accordance  with this Indenture,  the  Intercreditor Agreement or any Additional Intercreditor Agreement.                                       102  EU-DOCS\26039728.6 





 






        (c)   At  the  direction  of  the  Issuer  and  without  the  consent  of  the  Holders (subject  to  customary protections and indemnifications), the Trustee and Notes Collateral Agent may from time to  time  amend,  extend,  renew,  restate,  supplement  or  otherwise modify  or  release  the  Notes  Security  Documents (followed by an immediate retaking of a Lien of at least equivalent ranking over the same  assets) to (i) cure any ambiguity, omission, defect or inconsistency therein; (ii) provide for Permitted  Collateral  Liens;  (iii) make  any  change  reasonably  necessary  or  desirable  in  the  good  faith  determination of the Issuer in order to implement transactions permitted under Section 5.01 and Section  5.02; (iv) add to the Notes Collateral; (v) provide for the release of any Lien on any properties or assets  constituting Notes Collateral from the Lien of the Notes Security Documents; provided that such release  is followed by the substantially concurrent re-taking of a Lien of at least equivalent priority over the  same properties and assets securing the Notes or any Note Guarantee; or (vi) make any other change  thereto that does not adversely affect the Holders in any material respect (it being understood that such  restatement, amendment or other modification to provide for subordinated security interests will be  deemed  not to be  materially  less  favorable  to  the  Holders)  or  (vii) subject to compliance  with this  Indenture,  the  Intercreditor  Agreement  or  any  Additional  Intercreditor  Agreement,  as  applicable,  increase  the  amounts  and  types  of  Indebtedness  covered  by  such  Security  Document;  provided,  however, that, contemporaneously with any such action in clauses (ii), (iii), (iv), (v), and (vi) of this  Section 4.18 the Issuer delivers to the Trustee, either (1) a solvency opinion, in form and substance  reasonably satisfactory to the Trustee, from an independent financial advisor or appraiser or investment  bank of international standing which confirms the solvency of the Issuer and its Subsidiaries, taken as  a  whole,  after  giving  effect  to  any  transactions  related  to  such  amendment,  extension,  renewal,  restatement, supplement, modification or replacement, (2) a certificate from the chief financial officer  or the Board of Directors of the relevant Person which confirms the solvency of the Person granting the  Lien after giving effect to any transactions related to such amendment, extension, renewal, restatement,  supplement, modification or replacement, or (3) an opinion of counsel (subject to any qualifications  customary for this type of opinion of counsel), in form and substance reasonably satisfactory to the  Trustee, confirming that, after giving effect to any transactions related to such amendment, extension,  renewal, restatement, supplement, modification or replacement, the Lien or Liens created under the  Notes  Security  Documents  so  amended,  extended,  renewed,  restated,  supplemented,  modified  or  replaced are valid Liens not otherwise subject to any limitation, imperfection or new hardening period,  in equity or at law, that such Lien or Liens were not otherwise subject to immediately prior to such  amendment, extension, renewal, restatement, supplement, modification or replacement.        (d)   In  the  event  that  the  Issuer  and  the  Restricted  Subsidiaries  comply  with  the  requirements of this Section 4.18, the Trustee and the Notes Collateral Agent shall (subject to customary  protections and indemnifications) consent to such amendments without the need for instructions from  the Holders.   Section 4.19 Payments for Consents.   The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, pay  or cause to be paid any consideration to or for the benefit of any Holder for or as an inducement to  any consent, waiver or amendment of any of the terms of the provisions of this Indenture or the Notes  unless such consideration is offered to be paid and is paid to all Holders of Notes that consent, waive  or agree to amend in the timeframe set forth in the solicitation documents relating to such consent,  waiver or amendment. Notwithstanding the foregoing, the Issuer and the Restricted Subsidiaries shall  be permitted, in any offer or payment of consideration for, or as an inducement to, any consent,  waiver or amendment of any of the terms or provisions of this Indenture, to exclude holders of Notes  in any jurisdiction where (i) the solicitation of such consent, waiver or amendment, including in  connection with an exchange offer or an offer to purchase for cash, or (ii) the payment of the  consideration therefor would require the Issuer or any Restricted Subsidiary to file a registration  statement, prospectus or similar document under any applicable securities laws (including, but not  limited to, the United States federal securities laws and the laws of the European Union), which the  Issuer in its sole discretion determine (acting in good faith) (A) would be materially burdensome (it  being understood that it would not be materially burdensome to file the consent document(s) used in                                       103  EU-DOCS\26039728.6 





 






   other jurisdictions, any substantially similar documents or any summary thereof with the securities or  financial services authorities in such jurisdiction) or (B) such solicitation would otherwise not be  permitted under applicable law in such jurisdiction.  Section 4.20 Lines of Business.   The Issuer will not, and will not permit any of its Restricted Subsidiaries to, engage in any business  other than a Similar Business, except to such extent as would not be material to the Issuer and the  Restricted Subsidiaries, taken as a whole.   Section 4.21 Additional Guarantors.        (a)   The Issuer shall cause each Material Subsidiary (other than Excluded Subsidiaries) that  guarantees any Public Debt or any syndicated Credit Facilities of the Issuer or the Guarantors (other  than (solely with respect to the relevant Subsidiary) (i) any Guarantees of Public Debt or syndicated  Credit Facilities that exist at the time such Excluded Subsidiary became a Subsidiary of the Issuer and  (ii) Public Debt or syndicated Credit Facilities in an amount not greater than $50 million) to (x) become  a Guarantor within 30 days of becoming a Material Subsidiary and (y) substantially concurrently with  the provision of such Guarantee, to execute and deliver to the Trustee a supplemental indenture in the  form  attached  to  this Indenture  pursuant  to  which  such  Restricted  Subsidiary  will  provide  a  Note  Guarantee, which Note Guarantee will be senior to or pari passu with such Restricted Subsidiary’s  Guarantee of such other Indebtedness.        (b)   [Reserved].        (c)   [Reserved].        (d)   Note Guarantees existing on or granted after the Issue Date pursuant to this Section 4.21  shall be released as set forth under Section 10.06. In addition, Note Guarantees existing on or granted  after the Issue Date pursuant to Section 4.21(a) may be released at the option of the Issuer, if, at the date  of  such  release,  (i) the  Indebtedness  which  required  such  Note  Guarantee  has  been  released  or  discharged in full, (ii) no Event of Default would arise as a result of such release, and (iii) there is no  other Indebtedness of such Guarantor outstanding that was Incurred after the Issue Date and that could  not have been Incurred in compliance with this Indenture as of the date Incurred if such Guarantor were  not a Guarantor as at that date. Notwithstanding anything in this Indenture to the contrary, the Issuer  may elect, in its sole discretion, to cause any Subsidiary that is not otherwise required to be a Guarantor  to  become  a  Guarantor  and  such  Note  Guarantee  may  be  released  at  any  time  in  the  Issuer’s  sole  discretion. The Trustee and the Notes Collateral Agent (to the extent action is required by it) shall each  take all necessary actions requested by the Issuer, including the granting of releases or waivers under  the Intercreditor Agreement or any Additional Intercreditor Agreement, to effectuate any release of a  Note  Guarantee  in  accordance  with  these  provisions,  subject  to  customary  protections  and  indemnifications.        (e)   [Reserved].        (f)   Each  additional  Note  Guarantee  will  be  limited  as  necessary  to  recognize  certain  defenses  generally  available  to  guarantors  (including those  that  relate  to  fraudulent  conveyance  or  transfer, voidable preference, financial assistance, corporate purpose, thin capitalization, distributable  reserves, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors  generally) or other considerations under applicable law.        (g)   Notwithstanding the foregoing, the Issuer shall not be obligated to (i) cause an Excluded  Subsidiary to provide a Note Guarantee (for so long as such entity is an Excluded Subsidiary), nor (ii)  to cause any Restricted Subsidiary to provide a Note Guarantee to the extent and for so long as the  Incurrence of such Guarantee pursuant to this Section 4.21(g)(ii) could reasonably be expected to give  rise to or result in: (1) any violation of applicable law or regulation; (2) any liability for the officers,                                       104  EU-DOCS\26039728.6 





 






   directors or (except in the case of a Restricted Subsidiary that is a partnership) shareholders of such  Restricted  Subsidiary  (or,  in  the  case  of  a  Restricted  Subsidiary  that  is  a  partnership,  directors  or  shareholders of the partners of such partnership); (3) any cost, expense, liability or obligation (including  with respect to any Taxes) other than reasonable out-of-pocket expenses and other than reasonable  expenses incurred in connection with any governmental or regulatory filings required as a result of, or  any  measures  pursuant  to  clause (1)  of  this  Section 4.21(g) undertaken  in  connection  with,  such  Guarantee, which in any case under any of clauses (1), (2) and (3) of this Section 4.21(g) cannot be  avoided through measures reasonably available to the Issuer or such Restricted Subsidiary; or (4) such  Restricted Subsidiary is prohibited from Incurring such Guarantee by the terms of any Indebtedness of  such Restricted Subsidiary existing on the Issue Date (or if later, on the date such entity becomes a  Restricted Subsidiary) that is not prepayable without a prepayment premium (in each case, other than  Indebtedness Incurred to provide all or any portion of the funds utilized to consummate the transaction  or  series  of  related  transactions  pursuant  to  which  such  Person  became  a Restricted  Subsidiary);  provided that this  clause (4) applies only for so long as such prepayment premium applies to such  Indebtedness.   Section 4.22 Limitation on Parent Guarantor Activities.        (a)   The Parent Guarantor will not engage in any business activity or undertake any other  activity, except any such activity:               (1)   reasonably  relating  to  the  offering,  sale,  issuance,  Incurrence,  servicing,  purchase, redemption, amendment, exchange, refinancing or retirement of or Investment in the Notes,  any Additional Notes or other Indebtedness (including any Refinancing Indebtedness in respect of any  of  the  foregoing)  or  borrowing  directly  or  indirectly  from  a  Parent,  the  Issuer  or  any  Restricted  Subsidiary);               (2)   undertaken with the purpose of, directly or indirectly, fulfilling its obligations  or  exercising  its  rights  under  the  Notes,  any  Additional  Notes  or  other  Indebtedness,  Hedging  Obligations or any other obligations (including any Refinancing Indebtedness in respect of any of the  foregoing);               (3)   directly  related  or  reasonably  incidental to  the  establishment  and/or  maintenance of the Parent Guarantor’s corporate existence, the acquisition, holding or disposition of  assets;              (4)   directly related to investing any amounts received by the Parent Guarantor;               (5)   making Investments, Investments in intra-group loans and Investments in any  other Indebtedness of the Parent Guarantor or the Issuer;               (6)   related to cash management activities; or               (7)   (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  above that are immaterial in nature.         (b)   The Parent Guarantor shall not:               (1)   issue any Capital Stock (other than to a Parent or a Wholly-Owned Restricted  Subsidiary);               (2)   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 amended;                                         105  EU-DOCS\26039728.6 





 






              (3)   commence or take any action or facilitate a winding-up, liquidation, dissolution  or other analogous proceeding; or               (4)   amend its constitutive documents in any manner which would adversely affect  the rights of Holders in any material respect.   Section 4.23 Restrictions on Licensing Activities.   The Issuer will not, and will not permit any of its Restricted Subsidiaries to, engage in any material  sale, transfer or exclusive licensing of the Target Group’s brand, or of any of the Target Group’s other  material intellectual property (in each case, whether owned by the Target or another member of the  Group), except for the Permitted Licensing Activities.   Section 4.24 Reserved Indebtedness.         For purposes of determining compliance with any provision of this Indenture which requires  the  calculation  of  the  Consolidated  Net  Senior  Secured  Leverage  Ratio or  the Consolidated  Net  Leverage Ratio, as applicable, or testing baskets set forth in this Indenture (including baskets measured  as a percentage of Pro Forma EBITDA) in connection with (x) the Incurrence of any Indebtedness or  (y) the Incurrence of any Lien, the Issuer may elect, in its sole discretion, to treat all or any portion of  the  committed  amount  of  any  Indebtedness  (and  the  issuance  and  creation  of  letters  of  credit  and  bankers’ acceptances thereunder) which is to be Incurred (or any commitment in respect thereof) or  secured by such Lien, as the case may be (any such amount elected until revoked as described below,  an “Elected Amount”) as being Incurred as of such election date and (i) any subsequent borrowing or  re-borrowing  of  Indebtedness  under  such  commitment  (so  long  as  the  total  amount  under such  Indebtedness does not exceed the Elected Amount) shall not be deemed, for purposes of this calculation,  to be an Incurrence of additional Indebtedness or an additional Lien at such subsequent time, (ii) the  Issuer may revoke an election of an Elected Amount at any time after the election date, (iii) for purposes  of  all  subsequent  calculations  of  Consolidated  Net  Leverage  Ratio or the Consolidated  Net  Senior  Secured Leverage Ratio, as applicable, the Elected Amount (if any) shall be deemed to be outstanding  (unless revoked in accordance with clause (ii)), whether or not such amount is actually outstanding, so  long as the applicable commitment remains outstanding and (iv) for the purpose of clauses (8) and (16)  of Section 4.04(b) and clause (30) of the definition of “Permitted Liens”, solely to the extent that the  Elected Amount has been Incurred in reliance thereof (and has not be reclassified), the Elected Amount  (if any) shall be deemed to be outstanding under such provisions (unless revoked in accordance with  clause (ii)), whether or not such amount is actually outstanding, so long as the applicable commitment  remains outstanding.   Section 4.25 Limited Condition Transaction.        In connection with any action being taken in connection with a Limited Condition Transaction,  for purposes of determining compliance with any provision of this Indenture which requires that no  Default or Event of Default, as applicable, has occurred, is continuing or would result from any such  action, as applicable, such condition shall, at the option of the Issuer, be deemed satisfied, so long as  no Default or Event of Default, as applicable, exists on the date the definitive agreements or irrevocable  notice, as applicable, for such Limited Condition Transaction are entered into or has been delivered, as  applicable. For the avoidance of doubt, if the Issuer has exercised its option under the first sentence of  this  Section 4.25,  and  any  Default  or  Event  of  Default  occurs  following  the  date  the  definitive  agreements 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 Transaction, any such Default or Event of Default shall be deemed to not have occurred or  be continuing for purposes of determining whether any action being taken in connection with such  Limited Condition Transaction is permitted hereunder.        In connection with any action being taken in connection with a Limited Condition Transaction  for purposes of:                                       106  EU-DOCS\26039728.6 





 






              (1)   determining compliance with any provision of this Indenture which requires  the calculation of the Consolidated Net Senior Secured Leverage Ratio or Consolidated Net Leverage  Ratio; or              (2)   testing  baskets  set  forth  in  this  Indenture  (including  baskets  measured  as  a  percentage of Pro Forma EBITDA);   in each case, at the option of the Issuer (the Issuer’s election to exercise such option in connection with  any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such  action is permitted hereunder, shall be deemed to be the date the definitive agreements or irrevocable  notice, as applicable, for such Limited Condition Transaction are entered into or has been delivered, as  applicable (the “LCT Test Date”). If, after giving pro forma effect to the Limited Condition Transaction  and  the  other  transactions  to  be  entered  into  in  connection  therewith  (including  any  Incurrence  of  Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent  two consecutive fiscal quarters ending prior to the LCT Test Date for which consolidated financial  statements of the Issuer are available, the Issuer could have taken such action on the relevant LCT Test  Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied  with.        If the Issuer has made an LCT Election and any of the ratios or baskets for which compliance  was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such  ratio or basket, including due to fluctuations in Pro Forma EBITDA of the Issuer or the Person subject  to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or  action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations.  If the Issuer 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 of Asset Dispositions, mergers, the conveyance, lease or other  transfer  of  all  or  substantially  all  of  the  assets  of  the  Issuer  or  the  designation  of  an  Unrestricted  Subsidiary or the making of Investments or Restricted Payments on or following the relevant LCT Test  Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated  or the definitive agreement or irrevocable notice, as applicable, for such Limited Condition Transaction  is 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 Transaction and  other transactions in connection therewith (including any Incurrence of Indebtedness and the use of  proceeds thereof) have been consummated.   Section 4.26 Completion of the Acquisition.        The  Initial  Issuer  shall  cause  the  Acquisition  to  be  consummated  as  soon  as  reasonably  practicable following the issue of the Notes.     Section 4.27 Post-Completion Date Undertakings.        (a)   On  the  Completion  Date, the Target will  execute  and  deliver  to  the  Trustee  a  supplemental indenture pursuant to which the Target will succeed the Initial Issuer as Issuer under this  Indenture.          (b)   On the earlier of (1) the date on which an Initial U.S. Guarantor provides a guarantee  under the New Credit Facilities and (2) a date falling no later than the date that is two Business Days  after the Completion Date:              (1)   the Issuer will cause each Initial U.S. Guarantor to execute and deliver to the  Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to which such Initial U.S.  Guarantor will provide a Note Guarantee; and                                        107  EU-DOCS\26039728.6 





 






              (2)   the Issuer will, and will cause each Initial U.S. Guarantor to, execute a Notes  Security Document, such that the Notes and the Note Guarantees will be secured by the same assets of  the Issuer  and  the Initial  Non-U.S.  Guarantors that secure  the  obligations  under  the  New  Credit  Facilities.        (c)   On  the  earlier  of  (1)  the  date  on  which  an  Initial  Non-U.S.  Guarantor  provides  a  guarantee under the New Credit Facility and (2) a date falling no later than the date that is 90 Business  Days after the Completion Date:              (1)   the Issuer will cause each Initial Non-U.S. Guarantor to execute and deliver to  the Trustee a supplemental indenture in the form of Exhibit D hereto pursuant to which such Initial  Non-U.S. Guarantor will provide a Note Guarantee; and              (2)   the  Issuer  will  cause  each  Initial  Non-U.S.  Guarantor  to  execute  a  Notes  Security Document, such that the Notes and the Note Guarantees will be secured by the same assets of  the Initial Non-U.S. Guarantors which secure the obligations under the New Credit Facilities.        (d)   All Initial Notes Collateral granted by a Non-U.S. Guarantor pursuant to this Section  4.27 shall be subject to the operation of the Agreed Security Principles, and all Initial Notes Collateral  granted pursuant to this Section 4.27 shall be subject to the operation of any Permitted Collateral Liens.        (e)   The determination of Subsidiary Guarantors that are Initial Non-U.S. Guarantors, the  determination of the value of any Initial Notes Collateral in respect of requirements to grant a Lien over  any assets of the Issuer or any of its Restricted Subsidiaries and the application of the Agreed Security  Principles in respect of any Initial Notes Collateral granted by a Non-U.S. Guarantor or by the Issuer  or any U.S. Guarantor with respect to Notes Collateral located outside the United States and the Notes  Guarantees of any Initial Non-U.S. Guarantors shall be made by the Issuer at the time the relevant Initial  Notes Collateral is granted in accordance with the Intercreditor Agreement and this Indenture.  Upon  granting  the Initial  Notes Collateral  referred  to  in  this Section  4.27,  the  Issuer  and  its  Restricted  Subsidiaries shall have no further obligation to grant or maintain any Initial Notes Collateral, except as  otherwise required by another provision of this Indenture, the Intercreditor Agreement, any Additional  Intercreditor Agreement or any applicable Notes Security Documents.                                    ARTICLE 5                             SUCCESSOR COMPANY   Section 5.01 Merger and Consolidation of the Issuer.        (a)   After the Completion Date, the Issuer 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, in one transaction or a series of related transactions, to any Person, unless:              (1)   the resulting, surviving or transferee Person (the “Successor Company”) (if not  the Issuer) will be a Person organized and existing under the laws of any member state of the European  Union  as  of  the Issue  Date or  the  date  on  which  such  Person  becomes  the  Successor  Company,  Switzerland, Canada or the United States of America, any State of the United States or the District of  Columbia and the Successor Company (if not the Issuer) will expressly assume, (a) by supplemental  indenture, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the  obligations of the Issuer under the Notes and this Indenture and (b) all obligations of the Issuer under  the Intercreditor Agreement and the Notes Security Documents (or, subject to the Section 4.18 provide  a Lien of at least equivalent ranking over the same assets), as applicable;              (2)   immediately  after  giving  effect  to  such  transaction  (and  treating  any  Indebtedness that becomes an obligation of the Successor Company or any Subsidiary of the Successor  Company as a result of such transaction as having been Incurred by the Successor Company or such                                        108  EU-DOCS\26039728.6 





 






   Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be  continuing;              (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  two  consecutive fiscal quarter period, either (a) the Issuer or the Successor Company would have been able  to  Incur at  least  $1.00  of  additional  Indebtedness  under  pursuant  to  Section 4.04(a);  or  (b) the  Consolidated Net Leverage Ratio would not be greater than it was immediately prior to giving effect to  such transaction; and              (4)   the Issuer shall have delivered to the Trustee an Officer’s Certificate and an  Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such supplemental  indenture  (if  any)  comply  with  this  Indenture  and  an  Opinion  of  Counsel  to  the  effect  that  such  supplemental indenture (if any) has been duly authorized, executed and delivered and is a legal, valid  and binding agreement enforceable against the Successor Company (in each case, in form and substance  reasonably satisfactory to the Trustee); provided that in giving an Opinion of Counsel, counsel may rely  on an Officer’s Certificate as to any matters of fact.        (b)   For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer, or  other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of  the  Issuer,  which  properties  and  assets,  if  held  by  the  Issuer  instead  of  such  Subsidiaries,  would  constitute all or substantially all of the properties and assets of the Issuer on a consolidated basis, shall  be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.        (c)   The Successor Company will succeed to, and be substituted for, and may exercise every  right and power of, the Issuer under this Indenture but in the case of a lease of all or substantially all its  assets, the predecessor company will not be released from its obligations under this Indenture or the  Notes.        (d)   Notwithstanding clauses (2) and (3) (which do not apply to transactions referred to in  this  sentence)  and (4) of  Section 5.01(a) (which  does  not  apply  to  transactions  referred  to  in  this  sentence in which the Issuer is the Successor Company), (a) any Restricted Subsidiary may consolidate  or otherwise combine with, merge into or transfer all or part of its properties and assets to the Issuer,  (b) any Restricted Subsidiary that is not a Subsidiary Guarantor may consolidate or otherwise combine  with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary or  the Issuer and (c) the Issuer and the Restricted Subsidiaries may effect any Permitted Reorganization.  Notwithstanding  Section 5.01(a)(3) (which  does  not  apply  to  the  transactions  referred  to  in  this  sentence), the Issuer may consolidate or otherwise combine with or merge into an Affiliate incorporated  or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer in  another jurisdiction, or changing the legal form of the Issuer.        (e)   Section 5.01(a) through  Section 5.01(d) (other  than  the  requirements  of  Section 5.01(a)(2)) shall not apply to the creation of a new Subsidiary as a Restricted Subsidiary.   Section 5.02 Merger and Consolidation of the Subsidiary Guarantors.        (a)   After the Completion Date, none of the Subsidiary Guarantors (other than a Subsidiary  Guarantor whose Note Guarantee is to be released in accordance with the terms of this Indenture) may:              (1)   consolidate  with  or  merge  with  or  into  any  Person  (whether  or  not  such  Subsidiary Guarantor is the surviving Person);              (2)   sell, assign, convey, transfer, lease or otherwise dispose of, all or substantially  all  its  assets  as  an  entirety  or  substantially  as  an  entirety,  in  one  transaction  or  a  series  of  related  transactions, to any Person; or                                        109  EU-DOCS\26039728.6 





 






              (3)   permit any Person to merge with or into it;              unless:                    (A)   the  other  Person  is  the  Issuer  or  a  Restricted  Subsidiary  that  is  a             Subsidiary Guarantor or becomes a Subsidiary Guarantor as a result of such transaction;             or                    (B)   (1) either (x) a Subsidiary Guarantor is the surviving Person or (y) the             resulting, surviving or transferee Person expressly assumes all of the obligations of the             Subsidiary Guarantor  under  its  Note  Guarantee  and  this  Indenture  (pursuant  to  a             supplemental indenture executed and delivered in a form reasonably satisfactory to the             Trustee) and  all  obligations  of  the  Subsidiary  Guarantor  under  the  Intercreditor             Agreement and the Security Documents, as applicable; and (2) immediately after giving             effect to the transaction, no Default or Event of Default shall have  occurred and is             continuing; or                    (C)   the transaction constitutes a sale or other disposition (including by way             of consolidation or merger) of a Subsidiary Guarantor or the sale or disposition of all             or substantially all the assets of a Subsidiary Guarantor (in each case other than to the             Issuer  or  a  Restricted  Subsidiary)  otherwise  permitted  by  this  Indenture  and  the             proceeds therefrom are applied as required by this Indenture; or                    (D)   the transaction constitutes a Permitted Reorganization.        (b)   Notwithstanding  Section 5.02(a)(3)(B)(2)  (which  does  not  apply  to  transactions  referred to in this sentence), (a) any Restricted Subsidiary may consolidate or otherwise combine with,  merge into or transfer all or part of its properties and assets to a Subsidiary Guarantor and (b) any  Subsidiary 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  Issuer.  Notwithstanding  Section 5.02(a)(3)(B)(2)  (which  does  not  apply  to  the  transactions  referred  to  in  this  sentence),  a  Subsidiary Guarantor  may  consolidate  or  otherwise  combine  with  or  merge  into  an  Affiliate  incorporated or organized for the purpose of changing the legal domicile of the Subsidiary Guarantor  reincorporating  the Subsidiary Guarantor in another jurisdiction,  or  changing  the  legal  form  of  the  Subsidiary Guarantor.                                    ARTICLE 6                           DEFAULTS AND REMEDIES   Section 6.01 Events of Default.        (a)   Each of the following is an “Event of Default” under this Indenture:              (1)   default in any payment of interest on any Note issued under this Indenture when  due and payable, continued for 30 days;              (2)   default in the payment of the principal amount of or premium, if any, on any  Note  issued  under this  Indenture  when  due  at  its  Stated  Maturity,  upon optional  redemption,  upon  required repurchase, upon declaration or otherwise;              (3)   failure by the Issuer, any Restricted Subsidiary or any other grantor of a Lien  over the Notes Collateral to comply for 60 days after notice by the Trustee or the Holders of at least 25%  in  principal  amount  of  the  outstanding  Notes  with  its  other  agreements  under  this  Indenture,  the  Intercreditor Agreement, any Additional Intercreditor Agreement or the Notes Security Documents;  provided that in the case of a failure to comply with Section 4.10, such period of continuance of such  default or breach shall be 90 days after notice described in this clause (3) is given;                                       110  EU-DOCS\26039728.6 





 






              (4)   [Reserved];              (5)   default under any mortgage, indenture or instrument under which there may be  issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the  Issuer  or  any  Restricted  Subsidiary  (or  the  payment  of  which is  Guaranteed  by  the  Issuer  or  any  Restricted Subsidiary) other than Indebtedness owed to the Issuer or a Restricted Subsidiary whether  such Indebtedness or Guarantee now exists, or is created after the Issue Date, which default:                    (A)   is caused by the failure to pay principal of such Indebtedness at the             Stated Maturity thereof (after giving effect to any applicable grace periods provided in             such Indebtedness) (“payment default”); or                    (B)   results in the acceleration of such Indebtedness prior to its maturity,   and, in each case, the principal amount of any such Indebtedness, together with the principal amount  of any other such Indebtedness under which there has been a payment default or the maturity of which  has been so accelerated, aggregates $25 million or more;             (6)   (i) the Issuer or a Significant Subsidiary or group of Restricted Subsidiaries  that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of  Bankruptcy Law:                    (A)   commences proceedings to be adjudicated bankrupt or insolvent;                    (B)   consents  to  the  institution  of  bankruptcy  or  insolvency  proceedings             against it, or the filing by it of a petition or answer or consent seeking reorganization or             relief under applicable Bankruptcy Law;                    (C)   consents to the appointment of a receiver, liquidator, assignee, trustee,             sequestrator or other similar official of it or for all or substantially all of its property;                    (D)   makes a general assignment for the benefit of its creditors; or                    (E)   generally is not paying its debts as they become due; or                      (ii)  a court of competent jurisdiction enters an order or decree under any  Bankruptcy Law that:                    (A)   is  for  relief  against  the  Issuer  or  any  Significant  Subsidiary  or  any             group of Restricted Subsidiaries that, taken  together, would constitute  a  Significant             Subsidiary in an involuntary case;                     (B)   appoints a Custodian or administrator of the Issuer or any Significant             Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute             a Significant Subsidiary or for a substantial part of the property of the Issuer or any             Significant  Subsidiary  or  any  group  of  Restricted  Subsidiaries  that,  taken  together,             would constitute a Significant Subsidiary; or                     (C)   orders the liquidation or winding up of the Issuer or any Significant             Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute             a Significant Subsidiary, and the order or decree remains unstayed and in effect for 60             consecutive days.                    (D)   failure by the Issuer or a Significant Subsidiary or group of Restricted             Subsidiaries that, taken together, would constitute a Significant Subsidiary to pay final             judgments aggregating in excess of $25 million, exclusive of any amounts that a solvent                                        111  EU-DOCS\26039728.6 





 






              insurance  company  has  acknowledged  liability  for,  which  judgments  are  not  paid,             discharged or stayed for a period of 60 days after the judgment becomes final;              (7)   any security interest under the Notes Security Documents shall, at any time,  cease to be in full force and effect (other than in accordance with the terms of the relevant Notes Security  Document, the Intercreditor Agreement, any Additional Intercreditor Agreement and this Indenture)  with respect to Notes Collateral having a fair market value in excess of $10 million for any reason other  than the satisfaction in full of all obligations under this Indenture or the release of any such security  interest in accordance with the terms of this Indenture, the Intercreditor Agreement, any Additional  Intercreditor  Agreement  or  the  Notes  Security  Documents  or  any  such  security  interest  created  thereunder shall be declared invalid or unenforceable and the Issuer shall assert in writing that any such  security interest is invalid or unenforceable and any such Default continues for 10 days;               (8)   any Note Guarantee by the Parent Guarantor, a Guarantor that is a Significant  Subsidiary or any group of Guarantors that taken together would constitute a Significant Subsidiary  ceases to be in full force and effect (other than in accordance with the terms of such Note Guarantee or  this Indenture) or is declared invalid or unenforceable in a judicial proceeding or any Guarantor denies  or  disaffirms  in  writing  its  obligations  under  its  Note  Guarantee  and  any  such  Default  continues  for 10 days after the notice specified in this Indenture; and               (9)   failure  by  the  Issuer  to  consummate  a Special  Mandatory  Redemption  in  accordance with Section 3.10.          The foregoing shall constitute Events of Default whatever the reason for any such Event of  Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any  judgment,  decree  or  order  of  any  court  of  any  order,  rule  or  regulation  of  any  administrative  or  governmental body.        (b)   A Default under clauses (3), (5), (7), (8) or (9) of Section 6.01(a) will not constitute an  Event of Default until the Trustee or the Holders of 25% in principal amount of the outstanding Notes  under this Indenture notify the Issuer of the Default and, with respect to clauses (3), (5), (7), (8) and  (9) of Section 6.01(a) the Issuer does not cure such Default within the time specified in clauses (3), (5),  (7), (8) and (9) of Section 6.01(a), as applicable, after receipt of such notice.        (c)   The Trustee shall not be deemed to have notice of any Default or Event of Default  (other than Default under clauses (1) or (2) of Section 6.01(a)) unless a written notice of any event  which is in fact such a Default is received by a Responsible Officer of the Trustee at the Corporate Trust  Office of the Trustee, and such notice references the Notes and this Indenture.        (d)   With respect to any Default or Event of Default, the words “exists,” “is continuing” or  similar expressions with respect thereto shall mean that the Default or Event of Default has occurred  and has not yet been cured or waived. If any Default or Event of Default occurs due to:              (1)   the failure by any person to take any action by a specified time, such Default  or Event of Default shall be deemed to have been cured at the time, if any, that the applicable person  takes such action; or               (2)   the taking of any action by any person that is not then permitted by the terms  of this Indenture or any other Notes Document, such Default or Event of Default shall be deemed to be  cured on the earlier to occur of (i) the date on which such action would be permitted at such time to be  taken under this Indenture and the other Notes Documents and (ii) the date on which such action is  unwound or otherwise modified to the extent necessary for such revised action to be permitted at such  time by this Indenture and the other Notes Documents. If any Default or Event of Default occurs that is  subsequently cured (a “Cured Default”), any other subsequent Default or Event of Default resulting  from the taking or omitting to take any action by any person, which subsequent Default or Event of                                        112  EU-DOCS\26039728.6 





 






   Default  would  not  have  arisen  had  the  Cured  Default  not  occurred,  shall  be  deemed  to  be  cured  automatically upon, and simultaneously with, the cure of the Cured Default.         Notwithstanding anything to the contrary in this Section 6.01(d), a Default or Event of Default  (the “Initial Default”) may not be cured pursuant to Section 6.01(d):                    (A)   in the case of an Initial Default described in Section 6.01(d)(2), if an             Officer of the Issuer had Knowledge at the time of taking any such action that such             Initial Default had occurred and was continuing; or                    (B)   in the case of an Event of Default described under Section 6.01(a)(9)             that directly results in material impairment of the rights and remedies of the Holders             and the Trustee under the Notes Documents; or                    (C)   if the Trustee shall have declared all the Notes to be due and payable             immediately pursuant to this Article 6 prior to the date such Initial Default would have             been deemed to be cured under Section 6.01(d).        For purposes of Section 6.01(d), “Knowledge” shall mean, with respect to an Officer of the  Issuer, (i) the actual knowledge of such individual or (ii) the knowledge that such individual would have  obtained if such individual had acted in good faith to discharge his or her duties with the same.        (e)   Without limiting the generality of Section 6.01(d), if a Default occurs for a failure to  deliver a required certificate in connection with an Initial Default then at the time such Initial Default  is cured, such Default for a failure to report or deliver a required certificate in connection with the Initial  Default will also be cured without any further action.        (f)   Without limiting the generality of Section 6.01(d), any Default or Event of Default for  the failure to comply with the time periods prescribed in Section 4.10 or otherwise to deliver any notice  or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the  delivery of any such report required by such covenant or notice or certificate, as applicable, even though  such delivery is not within the prescribed period specified in this Indenture.   Section 6.02 Acceleration.        If an Event of Default described in Section 6.01(a)(6) occurs and is continuing, the principal of,  premium, if any, and accrued and unpaid interest on all the Notes will become and be immediately due  and payable without any declaration or other act on the part of the Trustee or any Holders. If any other  Event  of  Default  (other  than  an  Event  of  Default  described  in  Section 6.01(a)(6))  occurs  and  is  continuing,  the  Trustee  or  the  Holders  of  at  least 25%  in  aggregate  principal  amount  of  the then  outstanding Notes may and, if directed by holders of at least 25% in aggregate principal amount of the  then outstanding Notes, the Trustee shall, declare all the Notes to be due and payable immediately. In  the  event  of  a  declaration  of  acceleration  of  the  Notes  because  an  Event  of  Default  under  Section 6.01(a)(5) has occurred and is continuing, the declaration of acceleration of the Notes shall be  automatically  annulled  if  the  event  of  default  or  payment  default  triggering  such  Event  of  Default  pursuant to Section 6.01(a)(5) shall be remedied or cured, or waived by the holders of the relevant  Indebtedness, or the  relevant Indebtedness  that gave  rise  to such Event of Default shall have  been  discharged in full, within 30 days after the declaration of acceleration with respect thereto and if (i) the  annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court  of  competent  jurisdiction  and  (ii) all  existing  Events  of  Default,  except  nonpayment  of  principal,  premium or interest on the Notes that became due solely because of the acceleration of the Notes, have  been cured or waived.   Section 6.03 Other Remedies.                                        113  EU-DOCS\26039728.6 





 






        Subject to Article 12 and to the duties of the Trustee as provided for in Article 7, if an Event of  Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment  of principal of or interest on the Notes or to enforce the performance of any provision of the Notes or  this Indenture.        The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not  produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising  any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute  a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All  available remedies are cumulative to the extent permitted by law.   Section 6.04 Waiver of Past Defaults.        The Holders of a majority in the aggregate principal amount of the outstanding Notes under this  Indenture  may  waive  all  past  or  existing  Defaults  or  Events  of  Default  (except  with  respect  to  nonpayment of principal, premium or interest) and rescind any such acceleration with respect to such  Notes and its consequences if rescission would not conflict with any judgment or decree of a court of  competent jurisdiction.   Section 6.05 Control by Majority.        The Holders of a majority in aggregate principal amount of the outstanding Notes are given the  right to direct the time, method and place of conducting any proceeding for any remedy available to the  Trustee (on behalf of the Holders) or of exercising any trust or power conferred on the Trustee (on  behalf of the Holders). However, the Trustee may refuse to follow any direction that conflicts with law  or this Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder  or that would involve the Trustee in personal liability. Subject to Article 7, if an Event of Default occurs  and  is  continuing,  prior to  taking  any  action  under  this  Indenture,  the  Trustee  will  be  entitled  to  indemnification and/or security satisfactory to it in its sole discretion against all losses and expenses  caused by taking or not taking such action.   Section 6.06 Limitation on Suits.        (a)   Except to enforce the right to receive payment of principal or interest when due, no  Holder may pursue any remedy with respect to this Indenture or the Notes unless:              (1)   such Holder has previously given the Trustee notice that an Event of Default is  continuing;              (2)   Holders of at least 25% in aggregate principal amount of the outstanding Notes  have requested the Trustee to pursue the remedy;              (3)   such Holders have offered the Trustee, and the Trustee has received, security  and/or indemnity satisfactory to it against any loss, liability or expense;              (4)   the Trustee has not complied with such request within 60 days after the receipt  of the request and the offer of security and/or indemnity; and              (5)   the  Holders  of  a  majority  in  aggregate  principal  amount  of  the  outstanding  Notes have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such  request within such 60-day period.        (b)   A Holder may not use this Indenture to prejudice the rights of another Holder or to  obtain a preference or priority over another Holder.   Section 6.07 Rights of Holders to Receive Payment.                                       114  EU-DOCS\26039728.6 





 






        Subject to Section 9.02, the right of any Holder to receive payment of principal of and interest  on the Notes held by such Holder, on or after the respective due dates expressed or provided for in the  Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall  not be impaired or affected without the consent of such Holder.   Section 6.08 Collection Suit by Trustee.        If an Event of Default specified in clause (1) or (2) of Section 6.01(a) occurs and is continuing,  the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer  or any other obligor on the Notes for the whole amount then due and owing (together with interest on  any unpaid interest to the extent lawful) and the amounts provided for in Section 7.07.   Section 6.09 Trustee May File Proofs of Claim.        The Trustee may file such proofs of claim and other papers or documents and take such actions  as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the  properly incurred compensation, expenses, disbursements and advances of the Trustee, its agent and  counsel and any other amounts due to the Trustee under Section 7.07) and the Holders allowed in any  judicial proceedings relative to the Issuer, their creditors or their property and, unless prohibited by law  or applicable regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy  or other Person performing similar functions, and any Custodian in any such judicial proceeding is  hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee  shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount  due it for the properly incurred compensation, expenses, disbursements and advances of the Trustee, its  agents and its counsel, and any other amounts due the Trustee and the Agents under Section 7.07.   Section 6.10 Priorities.        If the Trustee or the Notes Collateral Agent collects any money or property pursuant to this  Article 6, it shall pay out the money or property in the following order:        FIRST:  to  the  Trustee, the  Agents and  the  Notes  Collateral  Agent for  amounts  due  under  Section 7.02 and Section 7.07;        SECOND:  to  Holders  for amounts  due  and  unpaid  on  the  Notes  for  principal and  interest,  ratably, without preference or priority of any kind, according to the amounts due and payable on the  Notes for principal and interest, respectively; and        THIRD: to the Issuer or to such party as a court of competent jurisdiction shall direct.        The Trustee may fix a record date and payment date for any payment to Holders pursuant to  this Section 6.10. At least 15 days before such record date, the Trustee shall mail to each Holder and  the Issuer a notice that states the record date, the payment date and amount to be paid.   Section 6.11 Undertaking for Costs.        In any suit for the enforcement of any right or remedy under this Indenture or in any suit against  the Trustee or the Notes Collateral Agent for any action taken or omitted by it as the Trustee or the  Notes Collateral Agent, a court in its discretion may require the filing by any party litigant in the suit  of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs,  including properly incurred attorneys’ fees, against any party litigant in the suit, having due regard to  the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does  not apply to a suit by the Trustee, the Notes Collateral Agent or a Paying Agent, a suit by a Holder  pursuant to Section 6.07 or a suit by Holders of more than 10% in principal amount of the Notes then  outstanding.                                        115  EU-DOCS\26039728.6 





 






   Section 6.12 Waiver of Stay or Extension Laws.        The Issuer (to the extent it may lawfully do so) shall not at any time insist upon, or plead, or in  any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever  enacted, now or at any time hereafter in force, which may affect the covenants or the performance of  this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all  benefit or advantage of any such law, and shall not hinder, delay or impede the execution of any power  herein granted to the Trustee, but shall suffer and permit the execution of every such power as though  no such law had been enacted.   Section 6.13 Restoration of Rights and Remedies.        If the Trustee, the Notes Collateral Agent or any Holder has instituted any proceeding to enforce  any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for  any reason, or has been determined adversely to the Trustee, the Notes Collateral Agent or to such  Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, any  Guarantor, the Trustee, the Notes Collateral Agent and the  Holders  shall be  restored  severally and  respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee,  the  Notes Collateral Agent and  the  Holders  shall continue  as though no such proceeding had been  instituted.   Section 6.14 Rights and Remedies Cumulative.        Except  as  otherwise  provided  with  respect  to  the  replacement  or  payment  of  mutilated,  destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to  the Trustee, the Notes Collateral Agent or to the Holders is intended to be exclusive of any other right  or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in  addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity  or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not  prevent the concurrent assertion or employment of any other appropriate right or remedy.   Section 6.15 Delay or Omission Not Waiver.        No delay or omission of the Trustee, the Notes Collateral Agent or of any Holder to exercise  any right or remedy accruing upon any Event of Default shall impair any such right or remedy or  constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy  given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time,  and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.                                    ARTICLE 7                                   TRUSTEE   Section 7.01 Duties of Trustee.        (a)   In the event an Event of Default has occurred and is continuing of which a Responsible  Officer  of  the  Trustee  has  received  written  notification  in  accordance  with  the  provisions  of  this  Indenture, the Trustee will exercise such of the rights and powers vested in it under this Indenture and  use the same degree of care that a prudent Person would use in the conduct of its own affairs.        (b)   Except during the continuance of an Event of Default:              (1)   the  Trustee  undertakes  to  perform  such  duties  and  only  such  duties  as  are  specifically set forth in this Indenture and no implied covenants or obligations shall be read into this  Indenture against the Trustee; and                                        116  EU-DOCS\26039728.6 





 






              (2)   in the absence of bad faith on its part, the Trustee may conclusively rely, as to  the truth of the statements and the correctness of the opinions expressed therein, upon certificates or  opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the  Trustee shall examine such certificates and opinions to determine whether or not they conform to the  requirements  of  this  Indenture  (but need  not  confirm  or  investigate  the  accuracy  of  mathematical  calculations or other facts stated therein) and shall be entitled to seek advice from legal counsel in  relation thereto.        (c)   The Trustee may not be relieved from liability for its own grossly negligent action, its  own grossly negligent failure to act or its own willful misconduct, except that:              (1)   this Section 7.01(c) does not limit the effect of Section 7.01(a);              (2)   the Trustee shall not be liable for any error of judgment made in good faith by  a Responsible Officer unless it is proved that the Trustee was grossly negligent in ascertaining the  pertinent facts; and              (3)   the Trustee shall not be liable with respect to any action it takes or omits to take  in good faith in accordance with a direction received by it pursuant to Section 7.02, Section 7.03 or  Section 7.05;        (d)   The Trustee shall not be deemed to have notice or any actual knowledge of any matter  (including, without limitation, Defaults or Events of Default (other than default under Section 6.01(a)(1)  or 6.01(a)(2)), unless written notice thereof is received by the Responsible Officer of the Trustee at the  Corporate  Trust  Office  of  the  Trustee  in  accordance  with  this Indenture  and  such  notice  clearly  references the Notes, the Issuer or this Indenture.        (e)   Every provision of this Indenture that in any way relates to the Trustee is subject to  Section 7.01(a), Section 7.01(b), Section 7.01(c) and Section 7.01(f).        (f)   No provision of this Indenture shall require the Trustee to expend or risk its own funds  or otherwise incur liability in the performance of any of its duties hereunder or to take or omit to take  any action under this Indenture or take any action at the request or direction of Holders if it has grounds  for believing that repayment of such funds is not assured to it or it does not receive an agreement in  writing from the Holders for full indemnity and/or security satisfactory to it in its discretion against any  loss, liability or expense which might be incurred by it in compliance with such request or direction nor  shall the Trustee  be  required  to  do  anything  which  is  illegal  or contrary  to applicable  laws  or  this  Indenture. The Trustee will not be liable to the Holders if prevented or delayed in performing any of its  obligations  or  discretionary  functions  under  this  Indenture  by  reason  of  any  present  or  future  law  applicable to it, by any governmental or regulatory authority or by any circumstances beyond its control.        (g)   The Trustee shall not be liable for interest on any money received by it except as the  Trustee may agree in writing with the Issuer.        (h)   Money held in trust by the Trustee need not be segregated from other funds except to  the extent required by law.        (i)   The  Trustee  will  (save  as  expressly  otherwise  provided  herein)  have  absolute  and  uncontrolled discretion as to the exercise or non-exercise of its functions and will not be responsible for  any loss, liability, cost, claim, action, demand, expense or inconvenience which may result from their  exercise or non-exercise but, whenever the Trustee is under the provisions of this Indenture or the Notes  bound to act at the request or direction of the Holders, the Trustee shall nevertheless not be so bound  unless first indemnified and/or secured to its satisfaction against all actions, proceedings, claims and  demands to which it may render itself liable and all costs, charges, damages, expenses and liabilities  which it may incur by so doing.                                        117  EU-DOCS\26039728.6 





 






   Section 7.02 Rights of Trustee.        (a)   The Trustee may refrain from taking any action in any jurisdiction if the taking of such  action in that jurisdiction would, in its opinion, based upon legal advice in the relevant jurisdiction, be  contrary to any law of that jurisdiction or, to the extent applicable, the State of New York. Furthermore,  the Trustee may also refrain from taking such action if such action would otherwise render it liable to  any person in that jurisdiction, the State of New York or if, in its opinion based upon such legal advice,  it would not have the power to do the relevant thing in that jurisdiction by virtue of any applicable law  in that jurisdiction, in the State of New York or if it is determined by any court or other competent  authority in that jurisdiction, in the State of New York that it does not have such power.        (b)   The Trustee may conclusively rely and shall be fully protected in acting or refraining  to act based upon any document believed by it to be genuine and to have been signed or presented by  the proper Person. The Trustee need not investigate any fact or matter stated in the document.        (c)   Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate  or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good  faith in reliance on such Officer’s Certificate or Opinion of Counsel.        (d)   The Trustee may act through attorneys and agents and shall not be responsible for the  misconduct or negligence of any agent appointed with due care.        (e)   The Trustee shall not be liable for any action it takes or omits to take in good faith  which it believes to be authorized or within its rights or powers conferred upon it by this Indenture;  provided,  however, that  the Trustee’s  conduct  does  not  constitute  willful  misconduct  or  gross  negligence.        (f)   The Trustee may retain professional advisers to assist it in performing its duties under  this Indenture. The Trustee may consult with counsel of its selection, and the advice or Opinion of  Counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete  authorization and  protection from liability in respect of any action taken,  omitted  or suffered  by it  hereunder in good faith and in accordance with the advice or opinion of such counsel.        (g)   The Trustee shall not be bound to make any investigation into the facts or matters stated  in any Officer’s Certificate, Opinion of Counsel, or any resolution, certificate, statement, instrument,  opinion, report, notice, request, direction, consent, order, approval, appraisal, bond, debenture, note,  coupon, security other evidence of indebtedness or other paper or document, but the Trustee, in its  discretion, may make such further inquiry or investigation into such facts or matters as it may see fit,  and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to  examine the books, records and premises of the Issuer, personally or by agent or attorney at the sole  cost of the Issuer.        (h)   The Trustee shall be under no obligation to exercise any of the rights or powers vested  in it by this Indenture at the request, order or direction of any of the Holders pursuant to the provisions  of this Indenture, unless such Holders shall have offered to the Trustee indemnity and/or other security  satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred by it in  compliance with such request, order or direction.        (i)   In the  event the Trustee receives inconsistent or conflicting requests and indemnity  from two or more groups of Holders, each representing less than the requisite majority in aggregate  principal amount of the Notes then outstanding, pursuant to the provisions of this Indenture, the Trustee,  in its sole discretion, may determine what action, if any, shall be taken and shall be held harmless and  shall not incur any liability for its failure to act until such inconsistency or conflict is, in its opinion,  resolved, and absent willful misconduct or gross negligence, the Trustee shall not be liable for acting in  good faith on instructions believed by them to be genuine and from the proper party.                                        118  EU-DOCS\26039728.6 





 






        (j)   The Trustee shall have no duty to inquire as to the performance of the covenants of the  Issuer and/or its Restricted Subsidiaries in this Indenture and shall be entitled to assume that the Issuer,  the Guarantors and any Restricted Subsidiaries are in compliance with the terms of this Indenture.        (k)   The Trustee shall not have any obligation or duty to monitor, determine or inquire as to  compliance, and shall not be responsible or liable for compliance with restrictions on transfer, exchange,  redemption,  purchase  or  repurchase,  as  applicable,  of  minimum  denominations  imposed  under this  Indenture or under applicable law or regulation with respect to any transfer, exchange, redemption,  purchase or repurchase, as applicable, of any interest in any Notes, but may at its sole discretion, choose  to do so.        (l)   If any Guarantor is substituted to make payments on behalf of the Issuer pursuant to  Article 10, the Issuer shall promptly notify the Trustee of such substitution.        (m)   The Trustee and each Agent shall not be liable for acting in good faith on instructions  believed by it to be genuine and from the proper party.        (n)   The  Trustee  shall  not  be  required  to  give  any  bond  or  surety  with  respect  to  the  performance of its duties or the exercise of its powers under this Indenture.        (o)   The permissive rights of the Trustee to take the actions permitted by this Indenture will  not be construed as an obligation or duty to do so.        (p)   Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee  be  liable  for  punitive,  special,  indirect  or  consequential  loss  or  damage  of  any  kind  whatsoever  (including but not limited to loss of business, goodwill, opportunity or profits of any kind) of the Issuer,  any Guarantor, any Restricted Subsidiary or any other person, even if the Trustee has been advised of  the likelihood of such loss or damage and regardless of the form of action.        (q)   Except with respect to Section 4.01, and provided it or an affiliate of it is acting as the  Paying Agent, the Trustee shall have no duty to inquire as to the performance of the Issuer with respect  to the covenants contained in Article 4. The Trustee may assume without inquiry in the absence of  written notice to the contrary that the Issuer is duly complying with its obligations contained in this  Indenture required to be performed and observed by it, and that no Default or Event of Default or other  event which would require repayment of the Notes has occurred.        (r)   In no event shall the Trustee be responsible or liable for any failure or delay in the  performance  of its  obligations  hereunder  arising  out of,  or  caused  by,  directly or  indirectly,  forces  beyond its control, including, without limitation, acts of war or terrorism, civil or military disturbances,  nuclear or natural catastrophes or acts of God; it being understood that the Trustee shall use reasonable  efforts that are consistent with accepted practices in the banking industry to resume performance as  soon as practicable under the circumstances.        (s)   The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the  names  of  the  individuals  and/or  titles  of  officers  authorized  at  such  time  to  take  specified  actions  pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign  an  Officer’s  Certificate,  including  any  person  specified  as  so  authorized  in  any  such  certificate  previously delivered and not superseded.        (t)   The Trustee  may, in the  execution and  exercise  of all or any of the  trusts,  powers,  authorities and discretions vested in it by this Indenture, delegate to any person or persons all or any of  the trusts, powers, authorities and discretions vested in it by this Indenture and any such delegation may  be made upon such terms and conditions and subject to such regulations as the Trustee may think fit.  The Trustee shall not be under any obligation to supervise the activities of such delegates and shall not  be responsible for the misconduct or negligence of such delegates, or for any costs, expenses, losses or                                        119  EU-DOCS\26039728.6 





 






   liabilities of, or caused by, such delegates, provided that such delegation has been made with reasonable  care.        (u)   No provision of this Indenture shall require the Trustee to do anything which, in its  opinion, may be illegal or contrary to applicable law or regulation.        (v)   The Trustee and the Paying Agent shall be entitled to make payments net of any taxes  or other sums required by any applicable law to be withheld or deducted.   Section 7.03 Individual Rights of Trustee.        The Trustee in its individual or any other capacity may become the owner or pledgee of Notes  and may otherwise deal with the Issuer, its Subsidiaries or their respective Affiliates with the same  rights it would have if it were not Trustee. For the avoidance of doubt, any Paying Agent, Transfer  Agent or Registrar may do the same with like rights.   Section 7.04 Trustee’s Disclaimer.        The  Trustee  shall  not  be  responsible  for  and  makes  no  representation  as  to  the  validity,  effectiveness, correctness or adequacy of this Indenture, the offering materials related to this Indenture  or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money  paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, and it shall not  be responsible for any statement of the Issuer in this Indenture or in any document issued in connection  with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication. The  Trustee shall not be charged with knowledge of the identity of any Significant Subsidiary unless either  (a) a Responsible Officer shall have actual knowledge thereof or (b) the Trustee shall have received  notice thereof in accordance with Section 12.01 from the Issuer or any Holder.   Section 7.05 Notice of Defaults.        If a Default occurs and is continuing and a Responsible Officer of the Trustee has received  written notification thereof by the Issuer, the Trustee shall give notice of the Default to the Holders  within 60 days after being notified by the Issuer. Except in the case of a Default in the payment of  principal of, or premium, if any, or interest on any Note, the Trustee may withhold notice if and so long  as a committee of trust officers of the Trustee in good faith determines that withholding notice is in the  interests of the Holders.   Section 7.06 [Reserved].   Section 7.07 Compensation and Indemnity.        The Issuer, or, upon the failure of the Issuer to pay, each Guarantor, jointly and severally, shall  pay to the Trustee, the Agents and the Notes Collateral Agent from time to time such compensation as  the Issuer and Trustee, the Agents or the Notes Collateral Agent, as applicable, may from time to time  agree in writing for its acceptance of this Indenture and services hereunder and under the Notes. The  Trustee’s, the Agents’ and the Notes Collateral Agents’ compensation shall not be limited by any law  on compensation of a trustee of an express trust.        In the event of the occurrence of an Event of Default or the Trustee considering it expedient or  necessary or being requested by the Issuer to undertake duties which the Trustee and the Issuer agree  to be of an exceptional nature or otherwise outside the scope of the normal duties of the Trustee, the  Issuer shall pay to the Trustee such additional remuneration as shall be agreed between them.        The Issuer and each Guarantor, jointly and severally, shall reimburse the Trustee, the Agents  and the Notes Collateral Agent promptly upon request for all properly incurred disbursements, advances  and expenses incurred or made by it (as evidenced in an invoice from the Trustee, the Agents and the                                       120  EU-DOCS\26039728.6 





 






   Notes Collateral Agent, as applicable), including costs of collection, in addition to the compensation  for  its  services. Such  expenses  shall  include  the  properly  incurred  compensation  and  expenses,  disbursements and advances of the Trustee’s agents, counsel, accountants and experts. The Issuer and  each  Guarantor, jointly and severally shall indemnify the  Trustee, the  Agents, the  Notes Collateral  Agent and their respective officers, directors, agents and employers against any and all loss, liability,  taxes or expenses (including properly incurred attorneys’ fees) incurred by or in connection with the  acceptance or administration of its duties under this Indenture and the Notes including the costs and  expenses of enforcing this Indenture against the Issuer (including this Section 7.07) and defending itself  against any claim (whether asserted by the Issuer or any Holder or any other person) or liability in  connection with the exercise or performance of any of its powers or duties hereunder.        The Trustee and the Notes Collateral Agent shall notify the Issuer of any claim for which it may  seek indemnity promptly upon obtaining actual knowledge thereof; provided, however, that any failure  to  so  notify  the  Issuer  shall  not  relieve  the  Issuer  or  any  Guarantor  of  its  indemnity  obligations  hereunder. Except in cases where the interests of the Issuer and the Trustee may be adverse, the Issuer  shall defend the claim and the indemnified party shall provide reasonable cooperation at the Issuer’s  and any Guarantor’s expense in the defense. In cases where the interests of the Issuer and the Trustee  are adverse, (i) such indemnified party may, in its sole discretion, assume the defense of the claim  against it and the Issuer and any Guarantor shall, jointly and severally, pay the properly incurred fees  and expenses of the indemnified party’s defense (as evidenced in an invoice from the Trustee) and  (ii) such  indemnified  parties  may  have  separate  counsel  of  their  choosing  and  the  Issuer  and  any  Guarantor, jointly and severally, shall pay the properly incurred fees and expenses of such counsel (as  evidenced in an invoice from the Trustee). The Issuer need not pay for any settlement made without its  consent, which consent shall not be unreasonably withheld. The Issuer need not reimburse any expense  or indemnify against any loss, liability or expense incurred by an indemnified party through such party’s  own willful misconduct, gross negligence or fraud.        To  secure  the Issuer’s  and  any  Guarantor’s  payment  obligations  in  this  Section 7.07,  the  Trustee, the Agents and the Notes Collateral Agent have a Lien senior to the Notes on all money or  property held or collected by the Trustee other than money or property held in trust to pay principal of  and interest on particular Notes.        The Issuer’s and any Guarantor’s payment obligations pursuant to this Section 7.07 and any  lien arising thereunder shall survive the satisfaction or discharge of this Indenture, any rejection or  termination of this Indenture under any Bankruptcy Law or the resignation or removal of the Trustee,  the  Agents and  the  Notes  Collateral  Agent. Without  prejudice  to  any  other  rights  available  to  the  Trustee, the Agents and the Notes Collateral Agent under applicable law, when the Trustee, the Agents  and the Notes Collateral Agent incur expenses (including the fees and expenses of counsel) after the  occurrence of a  Default specified in Section 6.01(a)(6) with respect to the  Issuer, the  expenses  are  intended to constitute expenses of administration under any Bankruptcy Law.        For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to  the Trustee in this Section 7.07, including its right to be indemnified, are extended to, and shall be  enforceable by the Trustee in each of its capacities hereunder and by each agent (including the Agents)  and the Notes Collateral Agent, any custodian and any other Person employed with due care to act as  agent hereunder.   Section 7.08 Replacement of Trustee.        (a)   The Trustee may resign at any time by so notifying the Issuer in writing. The Holders  of a majority in principal amount of the Notes then outstanding may remove the Trustee by so notifying  the Trustee and the Issuer in writing and may appoint a successor Trustee. The Issuer shall be entitled  to remove the Trustee and any Holder who has been a bona fide Holder for not less than six months  may petition any court for removal of the Trustee and appointment of a successor Trustee, if:                                        121  EU-DOCS\26039728.6 





 






              (1)   the Trustee, in its capacity as such, has or acquires a conflict of interest that is  not eliminated;              (2)   the Trustee is adjudged bankrupt or insolvent;              (3)   a receiver or other public officer takes charge of the Trustee or its property; or              (4)   the Trustee otherwise becomes incapable of acting as Trustee hereunder.        (b)   If the Trustee resigns, is removed pursuant to Section 7.08(a) or if a vacancy exists in  the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring  Trustee), the Issuer shall promptly appoint a successor Trustee.        (c)   A successor Trustee shall deliver a written acceptance of its appointment to the retiring  Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall become  effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this  Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee  shall promptly transfer all property held by it as Trustee to the successor Trustee, provided that all sums  owing to the Trustee hereunder have been paid and subject to the lien provided for in this Section 7.08.  For the avoidance of doubt, any removal or resignation of the Trustee pursuant to this Section 7.08 shall  not become effective until the acceptance of the appointment by the successor Trustee.        (d)   If  a  successor Trustee  does  not take  office  within 30 days  after the  retiring  Trustee  resigns or is removed, (i) the retiring Trustee, at the expense of the Issuer, or the Holders of 10% in  principal amount of the Notes may petition any court of competent jurisdiction for the appointment of  a successor trustee, or (ii) the retiring Trustee may appoint a successor trustee at any time prior to the  date  on  which  a  successor  Trustee  takes  office; provided that  such  appointment  is  reasonably  satisfactory to, and at the joint and several cost and expense of, the Issuer and Guarantors.        (e)   Notwithstanding the replacement of the Trustee pursuant to this Section, the Issuer’s  obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.        (f)   For the avoidance of doubt, the rights, privileges, protections, immunities and benefits  given to the Trustee in this Article 7, including its right to be indemnified, are extended to, and shall be  enforceable by each Agent employed to act hereunder and the Notes Collateral Agent.   Section 7.09 Successor Trustee by Merger.        If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its  corporate trust business or assets to, another corporation or banking association, the resulting, surviving  or transferee corporation without any further act shall be the successor Trustee.        In case at the time such successor or successors by merger, conversion or consolidation to the  Trustee  shall succeed  to  the  trusts  created  by  this  Indenture  any  of  the  Notes  shall  have  been  authenticated  but  not  delivered,  any  such  successor  to  the  Trustee  may  adopt  the  certificate  of  authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that  time  any  of  the  Notes  shall  not  have  been  authenticated,  any  successor  to  the  Trustee  or  its  Authenticating Agent may authenticate such Notes either in the name of any predecessor hereunder or  in the name of the successor to the Trustee; and in all such cases such certificates shall have the full  force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee  shall have.   Section 7.10 [Reserved].   Section 7.11 Certain Provisions.                                        122  EU-DOCS\26039728.6 





 






        Each Holder by accepting a Note authorizes and directs on his or her behalf the Trustee to enter  into and to take such actions and to make such acknowledgements as are set forth in this Indenture or  other documents entered into in connection therewith.   Section 7.12 Resignation of Agents.        (a)   Any Agent may resign its appointment hereunder at any time without the need to give  any reason and without being responsible for any costs associated therewith by giving notice to the  Issuer  and  the  Trustee  (and  in  the  case  of  resignation  of  the  Paying  Agent  the  Paying  Agent  giving 30 days’ written notice) (waivable by the Issuer and the Trustee), provided that in the case of  resignation of the Paying Agent no such resignation shall take effect until a new Paying Agent shall  have been appointed by the Issuer to exercise the powers and undertake the duties hereby conferred and  imposed upon the Paying Agent. Following receipt of a notice of resignation from any Agent, the Issuer  shall promptly give notice thereof to the Holders in accordance with Section 12.01 Such notice shall  expire at least 30 days before or after any due date for payment in respect of the Notes.        (b)   If any Agent gives notice of its resignation in accordance with this Section 7.12 and a  replacement  Agent  is  required and  by  the  tenth  day  before  the  expiration  of  such  notice  such  replacement has not been duly appointed, such Agent may itself appoint as its replacement any reputable  and experienced financial institution or may petition a court of competent jurisdiction, with costs and  expenses  properly  incurred  by  the  Agent  in  relation  to  such  petition  to  be  paid  by  the  Issuer.  Immediately  following  such  appointment,  the  Issuer  shall  give  notice  of  such  appointment  to  the  Trustee, the remaining Agents and the Holders whereupon the Issuer, the Trustee, the remaining Agents  and the replacement Agent shall acquire and become subject to the same rights and obligations between  themselves as if they had entered into an agreement in the form mutatis mutandis of this Indenture.        (c)   Upon its resignation becoming effective the Paying Agent shall forthwith transfer all  moneys held by it hereunder, if any, to the successor Paying Agent or, if none, the Trustee or to the  Trustee’s order, but shall have no other duties or responsibilities hereunder, and shall be entitled to the  payment by the Issuer of its remuneration for the services previously rendered hereunder and to the  reimbursement of all reasonable expenses (including legal fees) incurred in connection therewith.                                    ARTICLE 8                     DISCHARGE OF INDENTURE; DEFEASANCE   Section 8.01 Discharge of Liability on Notes; Defeasance.        (a)   This Indenture, and the rights of the Trustee and the Holders under the Intercreditor  Agreement,  any  Additional  Intercreditor  Agreement  and the  Notes Security  Documents will  be  discharged and cease to be of further effect (except as to surviving rights of conversion or transfer or  exchange of the Notes, as expressly provided for in this Indenture) as to all outstanding Notes when  (1) either (a) all the  Notes previously authenticated and delivered (other than certain lost, stolen  or  destroyed Notes, and certain Notes for which provision for payment was previously made and thereafter  the  funds  have  been  released  to  the  Issuer)  have  been  delivered  to  the  relevant  Paying  Agent  for  cancellation; or (b) all the Notes not previously delivered to the relevant Paying Agent for cancellation  (i) have become due and payable, (ii) will become due and payable at their Stated Maturity within one  year or (iii) are to be called for redemption within one year under arrangements reasonably satisfactory  to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of  the  Issuer;  (2) the  Issuer  has  deposited  or  caused  to  be  deposited  with  the  Trustee  (or  an  entity  designated or appointed as agent by it for this purpose), cash in U.S. dollars or U.S. dollar-denominated  U.S. Government Obligations or a combination thereof, in an amount sufficient to pay and discharge  the  entire  Indebtedness  on  the  Notes  not  previously  delivered  to  the Trustee  for  cancellation,  for  principal, premium, if any, and interest to the date of deposit (in the case of Notes that have become  due and payable), or to the Stated Maturity or redemption date, as the case may be; provided, that upon  any redemption that requires the payment of the Applicable Premium, the amount deposited shall be  sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal                                       123  EU-DOCS\26039728.6 





 






   to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of  the  date  of  redemption  (any  such  amount,  the  “Applicable  Premium  Deficit”)  only  required  to  be  deposited with the Trustee on or prior to the date of redemption; (3) the Issuer has paid or caused to be  paid all other sums payable under this Indenture with respect to the Notes; (4) the Issuer has delivered  irrevocable instructions under this Indenture to apply the deposited money toward payment of the Notes  at maturity or on the redemption date, as the case may be; and (5) the Issuer has delivered to the Trustee  an Officer’s Certificate to the effect that all conditions precedent under this Section 8.01 relating to the  satisfaction and discharge of this Indenture and the Notes have been complied with.        (b)   Subject to Section 8.01(c) and Section 8.02, the Issuer at any time may terminate (i) all  of its obligations and all obligations of each Guarantor under the Notes, any Note Guarantees and this  Indenture (“legal defeasance option”) and cure all then existing Defaults and Events of Default or (ii) its  obligations under the covenants in Article 4 (other than Section 4.01) and Article (a) (other than Section  5.01(a)(1) and (2)) and the default provisions relating to such covenants in Section 6.01(a)(3) (other  than  with  respect  to  Section 5.01(a)(1) and (2)),  the  operation  of  clauses (5), (6) with  respect  to  Significant Subsidiaries, (7), (8) and (9) of Section 6.01(a) (“covenant defeasance option”). The Issuer  at  its  option  at  any  time  may  exercise  its  legal  defeasance  option with  respect  to  the  Notes,  notwithstanding  its  prior  exercise  of  its  covenant  defeasance  option. In  the  event  that  the  Issuer  terminates all of its obligations under the Notes of a series and this Indenture by exercising its legal  defeasance option, the obligations under any Guarantees shall each be terminated simultaneously with  the termination of such obligations.        If the Issuer exercises its legal defeasance option with respect to the Notes, the rights of the  Trustee and the Holders of such Notes under this Indenture in effect at such time will terminate (other  than with respect to the defeasance trust).        Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the Trustee  shall acknowledge in writing the discharge of those obligations that the Issuer terminates.        If the Issuer exercises its legal defeasance option with respect to the Notes, payment of such  Notes may not be accelerated because of an Event of Default with respect to such Notes. If the Issuer  exercises its covenant defeasance option with respect to the Notes, payment of such Notes may not be  accelerated because of an Event of Default specified in clause (3) (other than with respect to clauses (1)  and (2) of Section 5.01(a)), (5), (6), (7), (8) or (9) of Section 6.01(a)).        (c)   Notwithstanding Section 8.01(a) and Section 8.01(b), the Issuer’s and any Guarantors’  obligations  in  Section 2.03,  Section 2.04,  Section 2.05,  Section 2.06, Section 2.07,  Section 2.08,  Section 2.09, Section 2.10, Section 2.11, Article 7 and this Article 8, as applicable, and the rights of  Holders to receive payments in respect of the principal, premium, if any, and interest on the Notes when  such  payments  are  due,  solely  out  of  the  trust  created  pursuant  to  this  Indenture  referred  to  in  Section 8.01(a) and Section 8.02(a), shall survive until the Notes have been paid in full. Thereafter, the  Issuer’s and any Guarantors’ obligations in Section 7.07, Section 8.05 and Section 8.06, as applicable,  shall survive.   Section 8.02 Conditions to Defeasance.        (a)   The Issuer may exercise its legal defeasance option or its covenant defeasance option  with respect to the Notes only if the Issuer has irrevocably deposited in trust (the “defeasance trust”)  with the Trustee (or an entity designated or appointed as agent by it for this purpose) cash in U.S. dollars  or U.S. dollar-denominated U.S. Government Obligations or a combination thereof for the payment of  principal, premium, if any, and interest on such Notes to redemption or maturity, as the case may be,  and has delivered to the Trustee:              (1)   an Opinion of Counsel (subject to customary exceptions and exclusions) from  United States counsel to the effect that Holders of such Notes will not recognize income, gain or loss  for U.S. federal income tax purposes as a result of such deposit and defeasance and will be subject to                                       124  EU-DOCS\26039728.6 





 






   U.S. federal income tax on the same amount and in the same manner and at the same times as would  have been the case if such deposit and defeasance had not occurred (and in the case of legal defeasance  only, such Opinion of Counsel from United States counsel must be based on a ruling of the U.S. Internal  Revenue Service or other change in applicable U.S. federal income tax law);              (2)   an Officer’s Certificate stating that the deposit was not made by the Issuer with  the intent of defeating, hindering, delaying, defrauding or preferring any creditors of the Issuer;              (3)   an  Officer’s  Certificate  stating that all conditions  precedent provided  for or  relating to legal defeasance or covenant defeasance, as the case may be, have been complied with; and              (4)   an Opinion of Counsel to the effect that the trust resulting from the deposit does  not constitute, or is qualified as, a regulated investment company under the U.S. Investment Company  Act of 1940, as amended.        (b)   Before or after a deposit, the Issuer may make arrangements satisfactory to the Trustee  for the redemption of Notes at a future date in accordance with Article 3.   Section 8.03 Application of Trust Money.        The Trustee (or an entity appointed or designated (as agent) by it for this purpose) shall hold in  trust money, U.S. Government Obligations for the payment of principal, premium, if any, and interest  deposited with it pursuant to this Article 8. It shall apply the deposited money and the money from the  U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the  payment of principal of and interest on the Notes.   Section 8.04 Repayment to Issuer.        The Trustee  and the Paying Agent shall promptly turn over to the  Issuer upon request any  money,  U.S. Government  Obligations  held by  it  as provided  in  this  Article 8 which,  in  the  written  opinion of an internationally recognized firm of independent public accountants delivered to the Trustee  (which delivery shall only be required if U.S. Government Obligations have been so deposited), are in  excess of the amount thereof which would then be required to be deposited to effect an equivalent  discharge or defeasance in accordance with this Article 8.        Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay  to the Issuer upon written request any money held by them for the payment of principal or interest that  remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the Issuer  for payment as general creditors, and the Trustee and the Paying Agent shall have no further liability  with respect to such monies.   Section 8.05 Indemnity for Government Obligations.        The Issuer and any Guarantor, jointly and severally, shall pay and shall indemnify the Trustee  against  any  tax,  fee  or  other  charge  imposed  on  or  assessed  against  deposited  U.S. Government  Obligations or the principal and interest received on such U.S. Government Obligations.   Section 8.06 Reinstatement.        If the Trustee or Paying Agent is unable to apply any money, U.S. Government Obligations in  accordance with this Article 8 by reason of any legal proceeding or by reason of any order or judgment  of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,  the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no  deposit  had  occurred  pursuant  to  this  Article 8 until  such  time  as  the  Trustee  or  Paying  Agent  is  permitted to apply all such money, U.S. Government Obligations in accordance with this Article 8;  provided, however, that if the Issuer has made any payment of principal of or interest on any Notes                                       125  EU-DOCS\26039728.6 





 






   because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders  of such  Notes to receive  such  payment from the money, U.S. Government Obligations  held by the  Trustee or Paying Agent.                                    ARTICLE 9                          AMENDMENTS AND WAIVERS   Section 9.01 Without Consent of Holders.        (a)   Without the consent of any Holder, the Issuer, the Trustee, the Notes Collateral Agent  and the other parties thereto, as applicable, may amend or supplement any Notes Documents to:              (1)   cure any ambiguity, omission, defect, error or inconsistency;              (2)   provide  for  the  assumption  by  a  successor  Person  of  the  obligations  of  the  Issuer or any Guarantor under any Notes Document;              (3)   add to the covenants or provide for a Guarantee for the benefit of the Holders  or surrender any right or power conferred upon the Issuer or any Restricted Subsidiary;              (4)   make any change that would provide additional rights or benefits to the Trustee  or the Holders or does not adversely affect the rights or benefits to the Trustee or any of the Holders in  any  material  respect  under  the  Notes  Documents,  including  any  changes  relating  to  the  minimum  denominations of the Notes;              (5)   make such provisions as necessary (as determined in good faith by the Issuer)  for the issuance of Additional Notes Incurred in accordance with the terms of this Indenture;              (6)   provide for a Restricted Subsidiary to provide a Note Guarantee in accordance  with this Indenture, to add Note Guarantees with respect to the Notes (including any provisions relating  to the release or limitations of such Additional Guarantees), to add security to or for the benefit of the  Notes, or to effectuate or confirm and evidence the release, termination, discharge or retaking of any  Note Guarantee or Lien (including the Notes Collateral and the Notes Security Documents) or any  amendment in respect thereof with respect to or securing the Notes when such release, termination,  discharge or retaking or amendment is provided for under this Indenture, the Notes Security Documents,  the Intercreditor Agreement or any Additional Intercreditor Agreement;              (7)   conform the text of this Indenture, the Note Guarantees, the Notes Security  Documents, or  the  Notes  to  any  provision  of  the  section  of  the  Offering  Memorandum  entitled  “Description of the Notes” to the extent that such provision in the section of the Offering Memorandum  entitled “Description  of  the  Notes” was  intended  to  be  a verbatim recitation of  a  provision  of  this  Indenture, a Note Guarantee, the Notes Security Documents, or the Notes;               (8)   evidence and provide for the acceptance and appointment under this Indenture  or the Intercreditor Agreement or any Additional Intercreditor Agreement of a successor Trustee or  Notes Collateral Agent pursuant to the requirements thereof or to provide for the  accession by the  Trustee or Notes Collateral Agent to any Notes Document; or              (9)   as provided in Section 4.17.        (b)   In formulating its decision on the matters described in Section 9.01(a), the Trustee shall  be entitled to require and rely absolutely on such evidence as it deems necessary, including Officer’s  Certificates and Opinions of Counsel.   Section 9.02 With Consent of Holders.                                        126  EU-DOCS\26039728.6 





 






        (a)   The Issuer may amend, supplement or otherwise modify the Notes Documents with the  consent  of  the  Holders  of a  majority  in  principal  amount  of  the  Notes then  outstanding  (including  consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) and,  unless otherwise provided for in this Indenture, any default or compliance with any provisions thereof  may be waived with the consent of the Holders of a majority in principal amount of the Notes then  outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange  offer for, Notes). However, without the consent of each Holder of Notes affected (including consents  obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), an amendment,  supplement or waiver may not, with respect to any Notes held by a non-consenting Holder:              (1)   reduce the principal amount of such Notes whose Holders must consent to an  amendment, waiver, supplement or modification;              (2)   reduce the stated rate of or extend the stated time for payment of interest on  any such Note (other than, for the avoidance of doubt, any payment pursuant to a Change of Control  Offer or pursuant to Section 4.08);              (3)   reduce the principal of, or extend the Stated Maturity of, any such Note;              (4)   reduce the premium payable upon the redemption of any such Note or change  the time at which any such Note may be redeemed, in each case under Section 3.07 (other than, for the  avoidance of doubt, any payment pursuant to a Change of Control Offer or pursuant to Section 4.08);              (5)   change the place of payment of principal of, or premium, if any or instalment  of interest on, any Note or make any such Note payable in money other than that stated in such Note  (except to the extent the currency stated in such Notes has been succeeded or replaced pursuant to  applicable law);              (6)   impair the right of any Holder to receive payment of principal of and interest  on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any  such payment on or with respect to such Holder’s Notes (it being understood that this Section 9.02(a)(6)  will not apply to Section 4.03 or Section 4.08 except to the extent payments thereunder are at such time  due and payable);              (7)   make any change to Section 4.16 that adversely affects the right of any Holder  of such Notes in any material respect or amends the terms of such Notes in a way that would result in a  loss of an exemption from any of the Taxes described thereunder or an exemption from any obligation  to withhold or deduct Taxes so described thereunder unless the payor agrees to pay Additional Amounts,  if any, in respect thereof;              (8)   waive  a  Default  or  Event  of  Default  with  respect  to  the  nonpayment  of  principal, premium or interest on such Notes (except pursuant to a rescission of acceleration of the  Notes by the Holders of at least a majority in aggregate principal amount of such Notes and a waiver of  the payment default that resulted from such acceleration); or              (9)   make any change in the amendment or waiver provisions which require the  Holders’ consent described in this Section 9.02(a).        (b)   In addition, without the consent of at least 75% in aggregate principal amount of Notes  then outstanding, no amendment, supplement or waiver may (1) release any Guarantor from any of its  obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this  Indenture and the Intercreditor Agreement; or (2) release any of the security interests granted for the  benefit of the Holders in the Notes Collateral (to the extent any Notes Collateral so released in any  transactions or series of transactions has a fair market value in excess of $25 million) other than in  accordance  with  the  terms  of,  as  applicable,  the  Notes  Security  Documents,  the  Intercreditor  Agreement, any applicable Additional Intercreditor Agreement, and this Indenture, as applicable.                                       127  EU-DOCS\26039728.6 





 






        (c)   In formulating its decision on the matters described in Section 9.02(a), the Trustee shall  be entitled to require and rely absolutely on such evidence as it deems necessary, including Officer’s  Certificates and Opinions of Counsel.        (d)   The  consent  of  the  Holders  is  not  necessary  under  this  Indenture  to  approve  the  particular form of any proposed amendment. It is sufficient if such consent approves the substance of  the proposed amendment. A consent to any amendment or waiver under this Indenture by any Holder  of Notes given in connection with a tender of such Holder’s Notes will not be rendered invalid by such  tender.        (e)   After an amendment under this Section 9.02 becomes effective, in the case of Holders  of Definitive Notes, the Issuer shall mail to the Holders a notice briefly describing such amendment.  The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity  of an amendment under this Section 9.02.        (f)   The Notes issued on the Issue Date, and any Additional Notes, will be treated as a single  class for all purposes under this Indenture, including with respect to waivers and amendments, except  as otherwise stated in this Section 9.02.   Section 9.03 Revocation and Effect of Consents and Waivers.        (a)   A written consent to an amendment or a waiver by a Holder shall bind the Holder and  every subsequent  Holder  of  that  Note  or  portion  of the  Notes that  evidences  the  same  debt  as the  consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. However,  any such Holder or subsequent Holder may revoke the consent as to its Note if the Trustee receives  written notice of revocation before the date the amendment, supplement or waiver becomes effective.  After an amendment or waiver becomes effective, it shall bind every Holder. An amendment or waiver  becomes effective upon the (i) receipt by the Issuer or the Trustee of the requisite number of consents,  (ii) satisfaction  of  conditions  to  effectiveness  as  set  forth  in  this  Indenture  and  any  indenture  supplemental hereto containing such amendment or waiver and (iii) execution of such amendment or  waiver (or supplemental indenture) by the Issuer and the Trustee.        (b)   The  Issuer  may,  but  shall  not  be  obligated  to,  fix  a  record  date  for  the  purpose  of  determining the Holders entitled to give their written consent or take any other action described above  or  required  or  permitted  to  be  taken  pursuant  to  this  Indenture. If  a  record  date  is  fixed,  then  notwithstanding Section 9.03(a), those Persons who were Holders at such record date (or their duly  designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any  consent previously given or to take any such action, whether or not such Persons continue to be Holders  after such record date. No such consent shall be valid or effective for more than 120 days after such  record date.   Section 9.04 Notation on or Exchange of Notes.        If an amendment, modification or supplement changes the terms of a Note, the Trustee may  require the Holder of the Note to deliver it to the Trustee. The Trustee may place an appropriate notation  on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Issuer or the  Trustee  so  determines,  the  Issuer  in  exchange  for  the  Note  shall  issue  and  the  Trustee  or  an  Authenticating Agent shall authenticate a new Note that reflects the changed terms. Failure to make the  appropriate notation or to issue a new Note shall not affect the validity of such amendment, modification  or supplement.   Section 9.05 Trustee and Notes Collateral Agent to Sign Amendments.        The Trustee and the Notes Collateral Agent shall sign any amendment authorized pursuant to  this  Article 9 if the  amendment  does  not impose  any  personal obligations  on the  Trustee or Notes  Collateral Agent or adversely affect the rights, duties, liabilities or immunities of the Trustee and the                                       128  EU-DOCS\26039728.6 





 






   Notes  Collateral  Agent under  this  Indenture,  the  Notes  Security  Documents  and  the  Intercreditor  Agreement. If it does, the Trustee or the Notes Collateral Agent may, but need not, sign it. In signing  such amendment the Trustee and the Notes Collateral Agent shall be entitled to receive an indemnity  and/or security satisfactory to it and to receive, and (subject to Section 7.01 and Section 7.02(m)) shall  be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel stating that such  amendment complies with this Indenture and that such amendment has been duly authorized, executed  and delivered and is the legally valid and binding obligation of the Issuer and the Guarantors (if any)  enforceable against them in accordance with its terms, subject to customary exceptions.        Notwithstanding the foregoing and Section 12.02(b), no Opinion of Counsel will be required  for the Trustee to execute any amendment or supplement adding a new Guarantee of the Notes under  this  Indenture; provided  that the  execution  thereof  shall  be  deemed  a  representation  by  such  Guarantor(s) that (i) all conditions precedent and covenants, if any, relating to the execution of such  supplemental  indenture  have  been  satisfied,  (ii) that  such  executed  supplemental  indenture  is  substantially  in  the  form  attached  as Exhibit D hereto  (subject  to  the  inclusion  of  any  additional  limitations under applicable laws on the obligations of such Guarantor under its Note Guarantee) and  (iii) such supplemental indenture is enforceable in accordance with its terms subject to (A) bankruptcy,  insolvency, reorganization, moratorium, fraudulent conveyance and similar laws affecting the rights  and remedies of creditors generally and (B) general principles of equity.        For the avoidance of doubt, an Officer’s Certificate (which the Trustee will be fully protected  in  relying  upon  and  upon  which  the Trustee  shall  be  entitled  to  rely  without  further  enquiry  or  investigation) will be required for the Trustee to execute any amendment or supplement adding a new  Guarantee of the Notes under this Indenture.                                   ARTICLE 10                              NOTE GUARANTEES   Section 10.01 Note Guarantees.        (a)   Subject to this Article 10, each Guarantor hereby, as primary obligor and not merely as  a  surety,  jointly  and  severally, unconditionally  and  on  a  senior  basis  guarantees  to  each  Holder  authenticated and delivered by the Trustee (or the Authenticating Agent), to the Trustee and the Notes  Collateral Agent and their successors and assigns (on behalf of and for the benefit of the Holders, for  the purpose of this Article 10, and not in its individual capacity, but solely in its role as representative  of  the  Holders in  holding  and  enforcing  the  Notes  Collateral  and  the  Notes  Security  Documents),  irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer  hereunder or thereunder, that:              (1)   the  principal  of,  and  premium,  if  any,  and  interest  on,  the  Notes  will  be  promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and  interest  on the  overdue  principal  of  and  interest,  and  premium,  if  any,  on  the  Notes  (to the  extent  permitted by law) and all other obligations of the Issuer to the Holders or the Trustee or the Notes  Collateral Agent hereunder or thereunder will be promptly paid in full or performed, all in accordance  with the terms hereof and thereof; and              (2)   in case of any extension of time of payment or renewal of any Notes or any of  such other obligations, that same will be promptly paid in full when due or performed in accordance  with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.        Failing payment when due of any amount so guaranteed or any performance so guaranteed for  whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately.  Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.        (b)   Each  Guarantor  hereby  agrees  that  its  obligations  hereunder  are  unconditional,  irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of                                       129  EU-DOCS\26039728.6 





 






   any action or any delay or omission to assert any claim or to demand or enforce any remedy hereunder  or thereunder, any waiver, surrender, release or consent by any Holder of the Notes with respect to any  provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the  same  or any other circumstance  which might otherwise constitute a legal or equitable  discharge or  defense of a guarantor (other than payment in full of all the Obligations of the Issuer hereunder and  under  the  Notes). Each  Guarantor  hereby  waives, to  the  fullest extent  permitted  by  law,  diligence,  presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy  of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands  whatsoever  and  covenants  that  this  Note  Guarantee  will  not  be  discharged  except  by  complete  performance of the obligations contained in the Notes and this Indenture or by release in accordance  with the provisions of this Indenture.        (c)   If any Holder, the Trustee or the Notes Collateral Agent is required by any court or  otherwise to return to or for the benefit of the Issuer, the Guarantors or any custodian, trustee, liquidator  or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid by  either the Issuer or the Guarantors to the Trustee, the Notes Collateral Agent, or such Holder, this Note  Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.        (d)   Until terminated in accordance with Section 10.06, each Guarantor agrees that it will  not  be  entitled  to  any right  of  subrogation  in  relation  to  the  Holders  in  respect  of  any  obligations  guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further  agrees that, as between the Guarantors, on the one hand, and the Holders, the Notes Collateral Agent  and the Trustee, on the other hand,              (1)   the  maturity  of  the  obligations  guaranteed  hereby  may  be  accelerated  as  provided in Article 6 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or  other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and              (2)   in the event of any declaration of acceleration of such obligations as provided  in Article 6 such obligations (whether or not due and payable) will forthwith become due and payable  by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek  contribution from any non-paying Guarantor so long as the exercise of such right does not impair the  rights of the Holders under the Note Guarantee.        (e)   Each Guarantor also agrees to pay any and all costs and expenses (including attorneys’  fees and expenses) incurred by the Trustee or the Notes Collateral Agent in enforcing any rights under  this Section 10.01.        (f)   Each Guarantee shall remain in full force and effect and continue to be effective should  any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become  insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed  for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law,  continue to be effective or be reinstated, as the case may be, if at any time payment of the Notes are,  pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned  by any obligee on the Notes or Guarantees, whether as a “voidable preference,” “fraudulent transfer”  or otherwise, all as though such payment had not been made. In the event that any payment or any part  thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by  law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored  or returned.        In case any provision of any Guarantee shall be invalid, illegal or unenforceable, the validity,  legality, and enforceability of the remaining provisions shall not in any way be affected or impaired  thereby.   Section 10.02 Successors and Assigns.                                        130  EU-DOCS\26039728.6 





 






        This Article 10 shall be binding upon each Guarantor and its successors and assigns and shall  inure to the benefit of the successors and assigns of the Trustee, the Notes Collateral Agent and the  Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights  and privileges conferred upon that party in this Indenture and in the Notes shall automatically extend to  and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.   Section 10.03 No Waiver.        Neither a failure nor a delay on the part of the Notes Collateral Agent, the Trustee or the Holders  in exercising any right, power or privilege under this Article 10 shall operate as a waiver thereof, nor  shall a single or partial exercise thereof preclude any other or further exercise of any right, power or  privilege. The rights, remedies and benefits of the Notes Collateral Agent, the Trustee and the Holders  herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits  which either may have under this Article 10 at law, in equity, by statute or otherwise.   Section 10.04 Modification.        No modification, amendment or waiver of any provision of this Article 10, nor the consent to  any departure by any Guarantor therefrom, shall in any event be effective unless the same shall be in  writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific  instance and for the purpose for which given. No notice to or demand on any Guarantor in any case  shall entitle  such Guarantor to any other or further notice or demand  in the  same,  similar or other  circumstances.   Section 10.05 Execution of Supplemental Indenture for Guarantors.        Each Subsidiary which is required to become a Guarantor pursuant to this Indenture and the  Issuer shall promptly execute and deliver to the Trustee a supplemental indenture in the form attached  to  this  Indenture  as Exhibit D pursuant  to  which  such  Subsidiary  and  the  Issuer  shall  become  a  Guarantor under this Article 10. Concurrently with the execution and delivery of such supplemental  indenture, the Issuer shall deliver to the Trustee an Officer’s Certificate (which the Trustee shall be  fully protected in relying upon and upon which the Trustee shall be entitled to rely, without further  enquiry  or  investigation)  to  the  effect  that  such  supplemental  indenture  has  been  duly  authorized,  executed  and  delivered  by  such  Subsidiary  or  the  Issuer  and  that,  subject  to  the  application  of  bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other similar laws relating  to creditors’ rights generally and to the principles of equity, whether considered in a proceeding at law  or in equity, the Note Guarantee of such Guarantor is a legally valid and binding obligation of such  Guarantor, enforceable against such Guarantor in accordance with its terms and to such other matters  as the Trustee may reasonably request.        The  obligations  of  a  Guarantor  executing  and  delivering  a  supplemental  indenture  to  this  Indenture providing for a Note Guarantee of the Notes under this Article 10 shall be subject to such  limitations as are mandated under applicable laws in addition to the limitations set forth in Section 10.07  and set out in the relevant supplemental indenture.   Section 10.06 Release of the Note Guarantees.        (a)   Each Note Guarantee of a Guarantor will terminate automatically:              (1)   upon a sale or other disposition (including by way of consolidation, merger,  amalgamation or combination) of the Capital Stock of the relevant Subsidiary Guarantor (whether by  direct sale or sale of a holding company of such Subsidiary Guarantor) or the sale or disposition of all  or  substantially  all  the  assets  of  the Subsidiary Guarantor  (other  than  to  the  Issuer  or  a  Restricted  Subsidiary), in each case if the sale or other disposition does not violate Section 4.08;                                        131  EU-DOCS\26039728.6 





 






              (2)   upon  the  designation  in  accordance  with  this  Indenture  of  that Subsidiary  Guarantor  as  an  Unrestricted  Subsidiary  or  (ii) such Subsidiary Guarantor  otherwise  becomes  an  Excluded Subsidiary (other than pursuant to clause (1) of the definition thereof);              (3)   upon legal defeasance, covenant defeasance or satisfaction and discharge of  this Indenture, as provided in Article 8;              (4)   in  accordance  with  the  Intercreditor  Agreement  and  any  Additional  Intercreditor Agreement;               (5)   as described under Article 9;              (6)   as described under Section 4.21;              (7)   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  Section 5.02;               (8)   upon the full and final payment and performance of all obligations of the Issuer  under this Indenture and the Notes; or              (9)   in the event of solvent liquidation or dissolution of such Subsidiary Guarantor.        (b)   The Trustee and the Notes Collateral Agent (as applicable) shall each take all necessary  actions requested by the Issuer, including the granting of releases or waivers under the Intercreditor  Agreement or any Additional Intercreditor Agreement, to effectuate any release of a Note Guarantee in  accordance with Section 10.06(a), subject to customary protections and indemnifications. Each of the  releases set forth in Section 10.06(a) shall be effective without the consent of the Holders or any action  on the part of the Trustee. Neither the Trustee nor the Issuer will be required to make a notation on the  Notes to reflect any such release, termination or discharge.   Section 10.07 Limitations on Obligations of Guarantors.        Each Guarantor and, by its acceptance of the Notes, each Holder, hereby confirms that it is the  intention  of all  such  parties  that  the  Note  Guarantee of  such  Guarantor  not  constitute  a  fraudulent  transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the  Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any  Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby  irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as  will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such  Guarantor that are relevant under such laws and after giving effect to any collections from, rights to  receive contribution from or payments made by or on behalf of any other Guarantor in respect of the  obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor  under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable  law. Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full  of all guaranteed obligations under this Indenture to a contribution from each other Guarantor in an  amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net  assets of all the Guarantors at the time of such payment determined in accordance with GAAP.        Each Notes Guarantee and Security Document delivered or to be delivered by any Non-U.S.  Guarantor or by the Issuer or any U.S. Guarantor with respect to Notes Collateral located outside the  United States, shall be subject to the Agreed Security Principles.   Section 10.08 Non-Impairment.                                        132  EU-DOCS\26039728.6 





 






        The failure to endorse a Note Guarantee on any Note shall not affect or impair the validity  thereof.                                   ARTICLE 11                NOTES COLLATERAL, NOTES SECURITY DOCUMENTS                      AND THE NOTES COLLATERAL AGENT   Section 11.01 Notes Collateral and Notes Security Documents.        (a)   The Notes and Notes Guarantees shall be secured by first-priority security interests on  the Collateral, subject to Permitted Liens and the Intercreditor Agreements, as provided in the Notes  Security  Documents  and  will  be  secured  by  all Notes Security  Documents  hereafter  delivered  as  required  or  permitted  by  this  Indenture,  the Notes Security  Documents  and  the  Intercreditor  Agreements.        (b)   The Issuer and the Guarantors hereby agree that the Notes Collateral Agent shall hold  the Collateral in trust for the benefit of the Secured Parties, in each case pursuant to the terms of the  Notes Security Documents and the Intercreditor Agreements.        (c)   The Trustee and each Holder, by accepting the Notes and the Guarantees, acknowledges  that, as more fully set forth in the Notes Security Documents and the Intercreditor Agreements, the  Collateral as now or hereafter constituted shall be held for the benefit of the Secured Parties, and that  the Lien of this Indenture and the Notes Security Documents in respect of the Trustee and the Holders  is  subject  to  and  qualified  and  limited  in  all  respects  by  the Notes Security  Documents  and  the  Intercreditor Agreements and actions that may be taken thereunder.        (d)   The due and punctual payment of the principal of, premium on, if any, and interest on  the Notes and the Note Guarantees when and as the same shall be due and payable, whether on an  interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest  on the overdue principal of, premium on, if any, and interest (to the extent permitted by law), on the  Notes and the Note Guarantees and performance of all other obligations of the Issuer to the Holders or  the Trustee under this Indenture and the Notes, according to the terms hereunder or thereunder, are  secured as provided in the Notes Security Documents and the Intercreditor Agreement.         (e)   Each Holder, by accepting a Note, shall be deemed to have agreed to all the terms and  provisions  of  the  Notes  Security  Documents  and  the  Intercreditor  Agreement  and  any  Additional  Intercreditor Agreement entered into in compliance with Section 4.17 hereof and to have authorized the  Trustee and the Notes Collateral Agent to enter into any such Notes Security Document, Intercreditor  Agreement  or  Additional  Intercreditor  Agreement.  The  claims  of  Holders  will  be  subject  to  the  Intercreditor Agreement and any Additional Intercreditor Agreement entered into in compliance with  Section 4.17 hereof.        (f)                 (1)   Neither the Issuer nor any U.S. Guarantor will be required to (i) take any action  outside the United States to grant or perfect any security interest in any asset located outside of the  United States, (ii) execute any security agreement governed by the laws of a jurisdiction other than the  United States or (iii) make any intellectual property filing or search in a jurisdiction other than the  United States; and               (2)   subject  to  the  Agreed  Security  Principles,  no Non-U.S.  Guarantor  will  be  required to (i) take any action outside its jurisdiction of organization to grant or perfect any security  interest  in  any  asset  located  outside  of  its  jurisdiction  of  organization,  (ii)  execute  any  security  agreement governed by the law of a jurisdiction other than its jurisdiction of organization or (iii) make  any intellectual property filing or search in a jurisdiction other than its jurisdiction of organization;  provided, however, that, subject in all respects to the Agreed Security Principles, to the extent that any                                       133  EU-DOCS\26039728.6 





 






   Guarantor  owns  the  Capital  Stock  of  any  Restricted  Subsidiary that  is  organized  in  a  Covered  Jurisdiction and such Capital Stock constitutes Notes Collateral, such Guarantor shall, if applicable, be  required to provide a pledge of the Capital Stock of such Restricted Subsidiary governed by the laws of  the  jurisdiction  of  organization  of  such  Restricted  Subsidiary  to  the  extent  such  local  law  pledge  agreement is required to perfect the such security interest.     Section 11.02 Release of Notes Collateral        (a)   The Issuer and the Guarantors will be entitled to release the security interests in respect  of the  Notes Collateral securing the  Notes and the  Note  Guarantees  under any one  or more  of the  following circumstances:              (1)   in connection with any sale or other disposition of the Notes Collateral (other  than the pledges over all of the Capital Stock of the Issuer and any intercompany receivables owed by  the Issuer or any of its Restricted Subsidiaries to the Parent Guarantor) to a Person that is not the Issuer  or a Note Guarantor (but excluding any transaction subject to Section 5.01 and Section 5.02), if such  sale or other disposition does not violate the Section 4.08, but only in respect of the Notes Collateral  sold or otherwise disposed of;               (2)   in  connection  with  the  release  of  a  Subsidiary  Guarantor  from  its  Note  Guarantee pursuant to the terms of this Indenture, the release of the property and assets, and Capital  Stock, of such Subsidiary Guarantor;               (3)   if  the  Issuer  designates  any  Restricted  Subsidiary  to  be  an  Unrestricted  Subsidiary in accordance with the applicable provisions of this Indenture, the release of the property,  assets and Capital Stock of such Unrestricted Subsidiary;               (4)   upon legal defeasance, covenant defeasance or satisfaction and discharge of  this Indenture, as provided in Article 8;               (5)   in accordance with an enforcement sale in compliance with the Intercreditor  Agreement  or  any  Additional  Intercreditor  Agreement,  or  as  otherwise  provided  for  under  the  Intercreditor Agreement or any Additional Intercreditor Agreement;               (6)   as described under Section 4.06(b), Section 4.18 and Article 9;               (7)   upon the full and final payment and performance of all obligations of the Issuer  under this Indenture and the Notes               (8)   to  release  and  re-take  any  Lien  on  any  Notes  Collateral  to  the  extent  not  otherwise prohibited by the terms of this Indenture, the Notes Security Documents or the Intercreditor  Agreement or any Additional Intercreditor Agreement;               (9)    in connection with a transaction permitted by Section 5.01 and Section 5.02;               (10)  with the consent of holders of at least 75% in aggregate principal amount of  Notes (including, without limitation, consent obtained in connection with a tender offer or exchange  offer for, or purchase of, the Notes);               (11)  with respect to any Notes Collateral that is transferred to a Receivables Entity  pursuant to a  Qualified Receivables Financing, and with respect to any Securitization Asset that is  transferred in one or more transactions, to a Receivables Entity; or               (12)  if  the  respective  property  or  assets  cease  to  constitute  Notes  Collateral  (including as a result of being or becoming an Excluded Asset).                                        134  EU-DOCS\26039728.6 





 






        (b)   Upon receipt from the Issuer of an Officer’s Certificate stating that the release of such  Collateral is authorized or permitted under the Indenture and the Collateral Agreements, the Trustee (to  the  extent action is  required by it) and the  Notes Collateral Agent shall take  all necessary actions,  including the granting of releases or waivers under the Intercreditor Agreement, to effectuate any release  in accordance with these provisions, subject to customary protections and indemnifications. The Notes  Collateral Agent and the Trustee (as applicable) will take all necessary action required to effectuate any  release of the Notes Collateral, in accordance with the provisions of this Indenture, the Intercreditor  Agreement or any Additional Intercreditor Agreement and the relevant Notes Security Document. Each  of the releases set forth above shall be effected by the Notes Collateral Agent without the consent of  the Holders or any action on the part of the Trustee.   Section 11.03 Authorization  of  Actions  to  be  Taken  by  the  Trustee  or  the Notes  Collateral  Agent  Under the Notes Security Documents.        (a)   Subject  to  the  provisions  of  the Notes Security  Documents  and  the  Intercreditor  Agreements, each of the Trustee or the Notes Collateral Agent may (but shall not be obligated to), in  its sole discretion and without the consent of the Holders, on behalf of the Holders, take all actions it  deems necessary or appropriate in order to (a) enforce any of its rights or any of the rights of the Holders  under the Notes Security Documents and the Intercreditor Agreements and (b) collect and receive any  and all amounts payable in respect of the Notes Collateral in respect of the obligations of the Issuer and  the Guarantors hereunder and thereunder. Subject to the provisions of the Notes Security Documents  and the Intercreditor Agreements, the Trustee or the Notes Collateral Agent shall have the power to  institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment  of the Collateral by any acts that may be unlawful or in violation of the Notes Security Documents, the  Intercreditor Agreements or this Indenture, and such suits and proceedings as the Trustee or the Notes  Collateral Agent may deem expedient to preserve or protect its interest and the interests of the Holders  in  the  Collateral  (including  power to  institute  and  maintain  suits  or  proceedings  to  restrain  the  enforcement of or compliance with any legislative or other governmental enactment, rule or order that  may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment,  rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders  or the Trustee).        (b)   The Trustee or the Notes Collateral Agent shall not be responsible for the existence,  genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of  the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or  omission to act on its part hereunder, except (with respect to the Trustee) to the extent such action or  omission constitutes gross negligence, willful misconduct or bad faith on the part of the Trustee, for the  validity  or  sufficiency  of the  Collateral  or  any  agreement  or  assignment  contained  therein,  for  the  validity of the title of the Issuer or any Guarantor to the Collateral, for insuring the Collateral or for the  payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance  of the Collateral. Neither the Trustee nor the Notes Collateral Agent shall have any responsibility for  recording, filing, re-recording or refiling any financing statement, continuation statement, document,  instrument or other notice in any public office at any time or times or to otherwise take any action to  perfect  or  maintain  the  perfection  of  any  security  interest  granted  to  it  under  the Notes Security  Documents or otherwise.  The Notes Collateral Agent shall be deemed to have exercised reasonable  care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially  equal to that which it accords its own property and shall not be liable or responsible for any loss or  diminution  in  the value  of  any  of  the  Collateral,  by  reason  of  the  act  or  omission  of  any  carrier,  forwarding agency or other agent or bailee selected by the Notes Collateral Agent in good faith.  Neither  the  Trustee  nor  the Notes Collateral  Agent  shall  have  any  duty  to  ascertain  or  inquire  as  to  the  performance or observance of any of the terms of this Indenture, the Notes Security Documents by the  Issuer or the Guarantors.                                        135  EU-DOCS\26039728.6 





 






        (c)   Where any provision of this Indenture requires that additional property or assets be  added to the Collateral, the Issuer and the relevant Guarantor shall deliver to the Trustee or the Notes  Collateral Agent the following:              (1)   written notice from the Issuer of such Collateral;              (2)   the form of instrument adding such Collateral, which, based on the type and  location  of  the  property  subject  thereto,  shall  be  in  substantially  the  form  of  the  applicable Notes  Security Documents entered into on the date of this Indenture, with such changes thereto as the Issuer  shall consider appropriate, or in such other form as the Issuer shall deem proper; provided that any such  changes or such form are administratively satisfactory to the Trustee or the Notes Collateral Agent;              (3)   an Officer’s Certificate to the effect that the Collateral being added is in the  form, consists of the assets and is in the amount or otherwise has the fair market value required by this  Indenture;              (4)   an Officer’s Certificate to the effect that all conditions precedent provided for  in this Indenture to the addition of such Collateral have been complied with; and              (5)   such financing statements, if any, as the Issuer shall deem necessary to perfect  the Notes Collateral Agent’s security interest in such Collateral.        (d)   The Trustee or the Notes Collateral Agent, in giving any consent or approval under the  Notes Security Documents or the Intercreditor Agreements, shall be entitled to receive, as a condition  to such consent or approval, an Officer’s Certificate not otherwise expressly contemplated thereby or  by this Indenture to the effect that the action or omission for which consent or approval is to be given  does not impair the security of the Holders in contravention of the provisions of this Indenture, the  Notes Security Documents and the Intercreditor Agreements, and the Trustee or the Notes Collateral  Agent  shall  be  fully  protected  in  giving  such  consent  or  approval  on  the  basis  of  such  Officer’s  Certificate.        (e)   The Notes Collateral Agent shall be entitled to seek written directions from Holders of  a majority in aggregate principal amount of the then outstanding Notes prior to taking any action under  this Indenture, the Notes, the Notes Security Documents, any Collateral instrument or any Intercreditor  Agreement.   Section 11.04 Collateral Accounts.        The Trustee is authorized to receive any funds for the benefit of the Holders distributed under,  and in accordance with, the Notes Security Documents, and to make further distributions of such funds  to  the  Holders  according  to  the  provisions  of  this  Indenture,  the  Security  Documents  and  the  Intercreditor Agreements.   Section 11.05 Appointment and Authorization of Deutsche Bank Trust Company Americas as Notes  Collateral Agent.        (a)   Deutsche Bank Trust Company Americas is hereby designated and appointed as the  Notes Collateral Agent of the Secured Parties under the Notes Security Documents, and is authorized  as the Notes Collateral Agent for such Secured Parties (i) to execute and enter into each of the Notes  Security Documents and the Intercreditor Agreements and all other instruments relating to the Notes  Security Documents and the Intercreditor Agreements, (ii) to take action and exercise such powers as  are  expressly  required  or  permitted  hereunder  and  under  the Notes Security  Documents  and  the  Intercreditor Agreements and all instruments relating hereto and thereto including, without limitation,  entering  into  any  amendments,  supplements,  modifications  or  joinders  relating  thereto  and  (iii)  to  exercise such powers and perform such duties as are in each case, expressly delegated to the Notes                                        136  EU-DOCS\26039728.6 





 






   Collateral Agent by the terms hereof and thereof together with such other powers as are reasonably  incidental hereto and thereto.        (b)   Notwithstanding any provision to the contrary elsewhere in this Indenture or the Notes  Security Documents, the Notes Collateral Agent shall not have any duties or responsibilities except  those expressly set forth herein or therein or any fiduciary relationship with any Holder, and no implied  covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture  or any Notes Security Documents or otherwise exist against the Notes Collateral Agent.        (c)   The Notes Collateral  Agent  shall  incur  no  liability  to  anyone  in  acting  upon  any  signature, instrument, statement, notice, resolution, request, direction, consent, order, certificate, report,  opinion,  bond  or  other  document  or  paper reasonably  believed  by  it  to be  genuine  and  reasonably  believed by it to be signed by the proper party or parties. The Notes Collateral Agent may exercise any  of its rights or powers hereunder or perform any of its duties hereunder either directly or by or through  agents or attorneys, and the Notes Collateral Agent shall not be responsible for any misconduct or  negligence on the part of any agent or attorney appointed by it hereunder with due care. Anything in  this Indenture or Notes Security Documents notwithstanding, in no event shall the Notes Collateral  Agent be liable for special, indirect or consequential damage of any kind whatsoever (including but not  limited to lost profits), even if the Notes Collateral Agent has been advised of such loss or damage and  regardless  of  the  form  of  action.  Without  limiting  the  agreement  in  Section 7.07,  the  Issuer  and  Guarantors, shall, jointly and severally, indemnify and hold harmless the Notes Collateral Agent, its  directors,  officers,  agents and  employees  with  respect  to  any  and  all  expenses,  losses,  damages,  liabilities,  demands,  charges,  causes  of  action,  judgments  and  claims  of  any  nature  (including  the  reasonable fees and expenses of counsel and other experts) in respect of or arising from any acts or  omissions  performed  or  omitted  by  the Notes Collateral  Agent,  its  directors,  officers,  agents  or  employees hereunder or under the Notes Security Documents or Intercreditor Agreements or under any  other  agreement  executed  in  connection  therewith  without  willful  misconduct,  gross  negligence  or  reckless  disregard  of  its  duties  hereunder  or  under  the Notes Security  Documents  or  Intercreditor  Agreements or under any other agreement executed in connection therewith, as determined by a final  order of a court of competent jurisdiction that is not subject to appeal.        (d)   The Notes Collateral Agent shall be entitled to the benefit of all of the rights, privileges,  indemnities and immunities granted to the Trustee.        (e)   The Notes Collateral Agent may resign or be removed in accordance with Section 7.08  hereof.        (f)   For  the  avoidance  of  doubt  and  subject  to  the  last  paragraph  of  the  definition  of  Guarantee, the Notes Collateral Agent shall have no discretion under this Indenture, the Intercreditor  Agreements  or  the Notes Security  Documents  and  shall  not  be  required  to  make  or  give  any  determination, consent, approval, request or direction without the written direction of the Holders of a  majority in aggregate principal amount of the then outstanding Notes.  If the Notes Collateral Agent  shall  request  direction  from  the  Holders  of  a  majority  in  aggregate  principal  amount  of  the  then  outstanding Notes with respect to any action, the Notes Collateral Agent shall be entitled to refrain from  such action unless and until the Notes Collateral Agent shall have received direction (and indemnity, if  requested) from the Holders of a majority in aggregate principal amount of the then outstanding Notes,  and the Notes Collateral Agent shall not incur liability to any Person by reason of so refraining.  Whether  or  not  expressly  provided  therein,  in  acting  under  any Notes Security  Document  or  Intercreditor  Agreement, the Notes Collateral Agent shall be entitled to all of the rights, privileges, immunities and  indemnities granted to the Notes Collateral Agent in this Indenture.   Section 11.06 Conflicts.        Each of the Issuer, the Guarantors, the Trustee and the Holders acknowledge and agree that the  Notes Collateral Agent is acting as collateral agent and trustee not just on their behalf but also on behalf  of certain creditors named in the Notes Security Documents and/or the Intercreditor Agreement, as                                       137  EU-DOCS\26039728.6 





 






   applicable, and acknowledge and agree that pursuant to the terms of the Notes Security Documents  and/or the Intercreditor Agreement, as applicable, the Notes Collateral Agent may be required by the  terms thereof to act in a manner which may conflict with the interests of the Issuer, the Guarantors, the  Trustee  and  the  Holders  (including  the  Holders’  interests  in  the  Notes  Collateral  and  the  Note  Guarantees) and that it shall be entitled to do so in accordance with the terms of the Notes Security  Documents and/or the Intercreditor Agreement, as applicable.                                   ARTICLE 12                               MISCELLANEOUS   Section 12.01 Notices. Any notice or communication shall be in writing in English and delivered in  person or mailed by first-class mail or facsimile addressed as follows:   if to the Issuer (prior to the Completion Date):   BidFair MergeRight Inc.  Corporation Trust Center  1209 Orange Street, Wilmington, New Castle County  Delaware 19801  United States of America  Attn:  Director    if to the Issuer (on or after the Completion Date):   Sotheby’s  1334 York Avenue  New York, NY 10021  United States of America  Attention: Sotheby’s Investor Relations    if to the Trustee, Paying Agent, Registrar, Transfer Agent and Notes Collateral Agent:   Deutsche Bank Trust Company Americas  Trust & Agency Services  60 Wall Street, 24th Floor  Mail Stop: NYC60-2405  New York, New York 10005  United States of America  Attention of: Corporate Team – BidFair MergeRight Inc.  Facsimile: +1 (732) 578-4635        Each of the Issuer or the Trustee by notice to the others may designate additional or different  addresses for subsequent notices or communications.        All notices to Holders of the Notes will be validly given if mailed to them at their respective  addresses in the register of the Holders of such Notes, if any, maintained by the Registrar. In addition,  if any Notes are listed on an exchange, and the rules of the exchange so require, the Issuer will publish  or post such notices in accordance with the rules of such exchange.        Each such notice shall be deemed to have been given on the date of such publication or, if  published more than once on different dates, on the first date on which publication is made; provided  that,  if  notices  are  mailed,  such  notice  shall  be  deemed  to  have  been  given  on  the  later  of  such  publication and the seventh day after being so mailed. Any notice or communication mailed to a Holder  shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently  given to such Holder if so mailed within the time prescribed. Failure to mail a notice or communication  to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or                                       138  EU-DOCS\26039728.6 





 






   communication is mailed in the manner provided above, it is duly given, whether or not the addressee  receives it.        For Notes which are represented by global certificates held on behalf of DTC, notices may be  given  by delivery of the relevant notices to DTC for communication to entitled account holders in  substitution for the aforesaid mailing.   Section 12.02 Certificate and Opinion as to Conditions Precedent.        Upon any request or application by the Issuer to the Trustee to take or refrain from taking any  action under this Indenture, the Issuer shall furnish to the Trustee:        (a)   an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee  stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture  relating to the proposed action have been complied with and any other matters that the Trustee may  reasonably request; and        (b)   if requested by the Trustee, an Opinion of Counsel in form and substance reasonably  satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent  have been complied with and any other matters that the Trustee may reasonably request.   Section 12.03 Statements Required in Certificate or Opinion.        Each certificate or opinion with respect to compliance with a covenant or condition provided  for in this Indenture (other than pursuant to Section 4.14) shall include:        (a)   a statement that the Person making such certificate or opinion has read such covenant  or condition;        (b)   a brief statement as to the nature and scope of the examination or investigation upon  which the statements or opinions contained in such certificate or opinion are based;        (c)   a statement that, in the opinion of such Person, such Person has made such examination  or investigation as is necessary to enable him to express an informed opinion as to whether or not such  covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be  limited to reliance on an Officer’s Certificate as to matters of fact); and        (d)   a  statement  as  to  whether  or  not,  in  the  opinion  of  such  Person,  such  covenant  or  condition has been complied with; provided, however, that with respect to matters of fact, an Opinion  of Counsel may rely on an Officer’s Certificate or certificates of public officials.   Section 12.04 When Notes Disregarded.         (a)   Except  as  otherwise  provided  under  Section 3.07 and  Section 4.03,  in  determining  whether the Holders of the required principal amount of the Notes have concurred in any direction,  waiver  or  consent,  any  such  Notes owned  by  the  Issuer  or  by  any  Person  directly  or  indirectly  controlling,  or  controlled  by,  or  under  direct  or  indirect  common  control with  the  Issuer  will  be  disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the  Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which the  Trustee knows are so owned shall be so disregarded. Subject to the foregoing, only Notes outstanding  at the time shall be considered in any such determination.   Section 12.05 Rules by Trustee, Paying Agent and Registrar.        The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar  and the Paying Agent may make reasonable rules for their functions.                                        139  EU-DOCS\26039728.6 





 






   Section 12.06 Legal Holidays.        If a payment date is not a Business Day, Holders will not be entitled to payment of the amount  due until the next succeeding Business Day, and will not be entitled to any further interest or other  payment as a result of any such delay.   Section 12.07 Governing Law and Waiver of Trial by Jury.        This Indenture, the Notes and the Note Guarantees, and the rights and duties of the parties  thereunder shall be governed by, and construed in accordance with, the laws of the State of New York.   Each of the Issuer, the Holders and the Trustee hereby irrevocably waives, to the fullest extent permitted  by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to  this Indenture or the Notes.   Section 12.08 Consent to Jurisdiction and Service.        The  Issuer  and the  Parent Guarantor  irrevocably  (i) agree  that  any  legal  suit,  action  or  proceeding against the Issuer or the Parent Guarantor arising out of or based upon this Indenture, the  Notes  or  any  Note  Guarantee  or  the  transactions  contemplated  hereby  may  be  instituted  in  any  U.S. Federal or state court in the Borough of Manhattan, The City of New York and (ii) waive, to the  fullest extent they may lawfully do so, any objection which they may now or hereafter have to the laying  of venue of any such proceeding.   Section 12.09 No Recourse Against Others.        No  director,  officer,  employee,  incorporator  or  shareholder  of  the  Issuer  or  any  of  its  Subsidiaries or Affiliates, as such, shall have any liability for any obligations of the Issuer under the  Notes Documents or for any claim based on, in respect of, or by reason of, such obligations or their  creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release  are part of the consideration for issuance of the Notes.   Section 12.10 Successors.        All agreements of the Issuer and each Guarantor, if any, in this Indenture and the Notes shall  bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.   Section 12.11 Multiple Originals.        The parties may sign any number of copies of this Indenture. Each signed copy shall be an  original, but all of them together represent the same agreement. One signed copy is enough to prove  this Indenture.   Section 12.12 Table of Contents; Headings.        The table of contents, cross-reference sheet and headings of the Articles and Sections of this  Indenture have been inserted for convenience of reference only, are not intended to be considered a part  hereof and shall not modify or restrict any of the terms or provisions hereof.   Section 12.13 Prescription.        Claims against the Issuer or any Guarantor for the payment of principal, or premium, if any, on  the Notes will be prescribed ten years after the applicable due date for payment thereof. Claims against  the Issuer or any Guarantor for the payment of interest on Notes will be prescribed five years after the  applicable due date for payment of interest.   Section 12.14 Patriot Act.                                        140  EU-DOCS\26039728.6 





 






        In order to comply with the laws, rules, regulations and executive orders in effect from time to  time applicable to banking institutions, including, without limitation, those relating to the funding of  terrorist  activities  and  money  laundering,  including  Section 326  of  the  USA  PATRIOT  Act  of  the  United States (“Applicable Law”), the Trustee and the Agents are required to obtain, verify, record and  update certain information relating to individuals and entities which maintain a business relationship  with the Trustee and/or the Agents. Accordingly, each of the parties agree to provide to the Trustee and  the Agents upon its request from time to time such identifying information and documentation as may  be available for such party in order to enable the Trustee and the Agents to comply with Applicable  Law.   Section 12.15 Severability.        In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the  validity, legality and  enforceability of the  remaining provisions  will not in any way be  affected or  impaired thereby.                               (Signature pages follow)                                             141  EU-DOCS\26039728.6 





 






                                  SIGNATURES   Dated as of October 2, 2019                                 BidFair MergeRight Inc., as Issuer                                                                  By: __________________________________                                 Name:                                  Title:           EU-DOCS\26039728.6 





 






                                 DEUTSCHE BANK TRUST COMPANY AMERICAS,                                as Trustee, Paying Agent, Transfer Agent, Notes Collateral                                Agent and Registrar                                                                  By:   ________________________________________                                      Name:                                       Title:                                                                                                                                                   By:   ________________________________________                                      Name:                                       Title:         EU-DOCS\26039728.6 





 






                                   EXHIBIT A                                                                     [Form of Face of Note]        [REGULATION S PERMANENT/RULE 144A/REGULATION S TEMPORARY]                                GLOBAL NOTE    [Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]   [Insert the Regulation S Temporary Global Note Legend, if applicable pursuant to the provisions of the  Indenture]   [Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]   [Insert the Original Issue Discount Legend, if applicable pursuant to the provisions of the Indenture]                                                                    A-1-1  EU-DOCS\26039728.6 





 






                                                               ISIN ____________                                                            CUSIP _____________                          7.375% Senior Secured Notes due 2027       No. ____________                                                 $                                  ____________                           BIDFAIR MERGERIGHT INC.   BidFair MergeRight Inc., a Delaware corporation, promises to pay to [  ], or its registered assigns,  the  principal  sum  of [  ] dollars,  subject  to  adjustments  listed  on  the  Schedule  of  Increases  or  Decreases in the Global Note attached hereto, on [  ].   Interest Payment Dates: [  ] and [  ] of each year, commencing [  ].   Record Dates: [  ] and [  ].   Additional provisions of this Note are set forth on the other side of this Note.                              (Signature page to follow)                                            A-1-2  EU-DOCS\26039728.6 





 






   IN WITNESS WHEREOF, BidFair MergeRight Inc. has caused this Note to be signed manually or by  facsimile by its duly authorized officers.   Dated:                              BIDFAIR MERGERIGHT INC.                                                                                                            By:   ____________________________________                                      Name:                                      Title:   This is one of the Notes referred  to in the Indenture.                                                                   A-1-3  EU-DOCS\26039728.6 





 






   DEUTSCHE BANK TRUST COMPANY AMERICAS, not in a personal capacity, but in its capacity  as the Authenticating Agent   By: __________________________________     (Authorized Signatory)                                           A-1-4  EU-DOCS\26039728.6 





 






                               [Form of Back of Note]                          7.375% Senior Secured Notes due 2027   1.   Interest        BidFair MergeRight Inc., a Delaware corporation (the “Issuer”), promises to pay interest on the  principal amount of this Note at the rate of 7.375% per annum. The Issuer shall pay interest semi- annually on June 1 and December 1 of each year, commencing on June 1, 2020 until maturity. The  Issuer will make each interest payment to Holders of record of the Notes on May 15 and November 15  immediately preceding the related interest payment date. Interest on the Notes shall accrue from the  date of original issuance, or, if interest has already been paid, from the date it was most recently paid  until the principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve  months of 30 days each.   2.   Method of Payment        Holders must surrender Notes to the Paying Agent to collect principal payments. The Issuer  shall pay principal, premium, if any, and interest in dollars. Principal, interest and premium, if any, on  the  Global Notes will be payable  at the  specified  office  or agency of one  or more  Paying Agents;  provided that payments on the Regulation S Global Notes and the Rule 144A Global Notes will be made  to Cede & Co. as the registered holder of the Regulation S Global Notes and the Rule 144A Global  Notes by wire transfer of immediately available funds to the account specified by the Holder or Holders  thereof.        Principal, interest and premium, if any, on the Definitive Registered Notes will be payable at  the specified office or agency of one or more Paying Agents maintained for such purposes in New York,  New York. In addition, at the option of the Issuer, interest on the Definitive Registered Notes may be  paid by check mailed to the Person entitled thereto as shown on the register for the Definitive Registered  Notes.        If the due date for any payment in respect of any Notes is not a Business Day, the Holder thereof  will not be entitled to payment of the amount due until the next succeeding Business Day, and will not  be entitled to any further interest or other payment as a result of any such delay.   3.   Paying Agent, Transfer Agent and Registrar        Initially, Deutsche Bank Trust Company Americas will act as Paying Agent, Transfer Agent  and Registrar. The Issuer may appoint and change any Registrar, Transfer Agent and Paying Agent.  The Issuer or any of its Subsidiaries may act as Registrar, Transfer Agent and Paying Agent.   4.   Indenture        The Issuer issued the Notes under the Indenture dated as of October 2, 2019 (the “Indenture”),  among the Issuer, the Parent Guarantor and Deutsche Bank Trust Company Americas, as trustee (the  “Trustee”), Paying Agent, Transfer Agent, Registrar and Notes Collateral Agent.  The terms of the  Notes include those stated in the Indenture.  Terms defined in the Indenture and not defined herein have  the meanings ascribed thereto in the Indenture.  The Notes are subject to all terms and provisions of the  Indenture, and Holders are referred to the Indenture for a statement of such terms and provisions. In the  event of a conflict between the Indenture and the terms of the Notes, the terms of the Indenture govern.        The Notes are general, senior secured obligations of the Issuer. This Note is one of the Notes  referred to in the Indenture. The Notes and, if issued, any Additional Notes are treated as a single class  for all purposes under the Indenture, including, without limitation, with respect to waivers, amendments,  redemptions and offers to purchase, except as otherwise provided for therein.                                       A-2-5  EU-DOCS\26039728.6 





 






   5.   Optional Redemption        (a)   Except as described below, the Notes are not redeemable until October 15, 2022. On  and after October 15, 2022, the Issuer may redeem all or, from time to time, part of the Notes upon not  less  than  10  nor  more  than  60 days’  notice,  at  the  following  redemption  prices  (expressed  as  a  percentage  of  the  principal  amount)  plus  accrued  and  unpaid  interest,  to,  but  not  including,  the  applicable redemption date (subject to the right of the Holders of record on the relevant record date to  receive interest due on the relevant interest payment date), if redeemed during the twelve-month period  beginning on October 15, of the years indicated below:    Year                                                          Redemption                                                                   Price   2022 ...........................................................................................................  103.688%   2023 ...........................................................................................................  101.844%   2024 and thereafter ....................................................................................  100.000%         (b)   Prior to October 15, 2022, the Issuer may redeem all, or from time to time, a part of the  Notes upon not less than 10 nor more than 60 days’ notice at a redemption price equal to 100% of the  principal amount thereof plus the Applicable Premium and accrued and unpaid interest, to, but not  including, the applicable redemption date (subject to the right of Holders of record on the relevant  record date to receive interest due on the relevant interest payment date).        (c)   Prior to October 15, 2022, the Issuer may on any one or more occasions redeem up to  40% of the original principal amount of the Notes (including, in each case, the principal amount of any  Additional Notes), upon not less than 10 nor more than 60 days’ notice, with funds in an aggregate  amount not exceeding the Net Cash Proceeds of one or more Equity Offerings at a redemption price of  107.375% of the principal amount of the Notes, plus, accrued and unpaid interest to, but not including,  the applicable redemption date (subject to the right of Holders of record on the relevant record date to  receive interest due on the relevant interest payment date); provided that:              (i)   at  least 60%  of  the  original  principal  amount  of  the Notes (including  the             principal  amount  of  any  Additional  Notes)  remains  outstanding  after  each  such             redemption; and              (ii)  the  redemption  occurs  within 180 days  after  the  closing  of  such  Equity             Offering.        (d)   If a redemption date is not a Business Day, the Holders will not be entitled to payment  of the amount due until the next succeeding Business Day, and will not be entitled to any further interest  or other payment as a result of any such delay.        (e)   Unless the Issuer defaults in the payment of the redemption price, interest will cease to  accrue on the Notes or the portion thereof called for redemption on the applicable redemption date.        (f)   Any redemption notice given in respect of the redemption of the Notes (including upon  an Equity Offering or in connection with a transaction (or series of related transactions) or an event that  constitutes a Change of Control) may, at the Issuer’s discretion, be subject to the satisfaction of one or  more conditions precedent, including, but not limited to, the completion or occurrence of the relevant  transaction, as the case may be.        (g)   If such redemption or purchase is  subject to satisfaction of one  or more  conditions  precedent, such  notice  shall describe  each  such  condition, and  if  applicable,  shall  state  that, in the  Issuer’s discretion, the redemption date may be delayed until such time (including more than 60 days  after the date the notice of redemption was mailed or delivered, including by electronic transmission)  as any or all such conditions shall be satisfied or waived, or such redemption or purchase may not occur                                      A-2-6  EU-DOCS\26039728.6 





 






   and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied  or waived by the redemption date, or by the redemption date as so delayed, or such notice may be  rescinded at any time in the Issuer’s discretion if in the good faith judgment of the Issuer any or all of  such conditions will not be satisfied.  In addition, the Issuer may provide in such notice that payment  of the redemption price and performance of the Issuer’s obligations with respect to such redemption  may be performed by another Person.  In no event shall the Trustee be responsible for monitoring, or  charged with knowledge of, the maximum aggregate amount of the Notes eligible under the Indenture  to be redeemed.        (h)   Any redemption pursuant to this paragraph 5 shall be made pursuant to Section 3.01  through Section 3.06 of the Indenture.        (i)   If any Notes are listed on an exchange, and the rules of the exchange so require, the  Issuer  will  notify  the  exchange  of  any  such  redemption  and  the  principal  amount  of  any Notes  outstanding following any partial redemption of such Notes. In no event will the Trustee be responsible  for monitoring, or charged with knowledge of, the maximum aggregate amount of Notes eligible under  the Indenture to be redeemed.        (j)   In connection with any tender offer or other offer to purchase for all of the Notes, if  Holders of not less than 90% of the aggregate principal amount of the then outstanding Notes validly  tender and do not validly withdraw such Notes in such tender offer and the Issuer, or any third party  making such tender offer in lieu of the Issuer, purchases all of the Notes validly tendered and not validly  withdrawn by such Holders, all of the Holders of the Notes will be deemed to have consented to such  tender or other offer and, accordingly, the Issuer or such third party will have the right, upon not less  than 10 nor more than 60 days’ notice following such purchase date, to redeem all Notes that remain  outstanding following such purchase at a price equal to the price paid to each other Holder in such  tender offer (other than any incentive payment for early tenders), plus, to the extent not included in the  tender offer payment, accrued and unpaid interest, if any, thereon, to, but not including, the repurchase  date (subject to the right of Holders of record on the relevant record date to receive interest due on the  relevant interest payment date). In determining whether the Holders of at least 90% of the aggregate  principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes  in a tender offer or other offer to purchase for all of the Notes, Notes owned by an Affiliate of the Issuer  or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, shall be  deemed to be outstanding for the purposes of any such tender offer or other offer, as applicable.   6.   Redemption for Changes in Taxes.        The Issuer may redeem the Notes, in whole but not in part, at any time upon giving not less  than 30 nor more than 60 days’ prior notice to the Holders (which notice will be irrevocable and given  in accordance with Section 3.03 of the Indenture), at a redemption price equal to 100% of the principal  amount thereof, together with accrued and unpaid interest, if any, to the date fixed by the Issuer for  redemption (a “Tax Redemption Date”) and all Additional Amounts (if any) then due and that will  become due on the Tax Redemption Date as a result of the redemption or otherwise (subject to the right  of Holders on the relevant record date to receive interest due on an interest payment date that is prior to  the Tax Redemption Date and Additional Amounts (if any) in respect thereof), if on the next date on  which any amount would be payable in respect of the Notes, the Issuer or any Guarantor is or would be  required to pay Additional Amounts, and the Issuer or the relevant Guarantor (but, in the case of a  Guarantor, only if the payment giving rise to such requirement cannot be made by the Issuer or another  Guarantor without the obligation to pay Additional Amounts) cannot avoid any such payment obligation  taking reasonable measures  available (provided that changing the jurisdiction of the Issuer is not a  reasonable measure for purposes of this section, and that changing the jurisdiction of a paying agent is  a reasonable measure), as a result of:        (a)   any  change  in,  or  amendment to, the  laws  (or any  regulations,  protocols  or rulings  promulgated thereunder) of the relevant Tax Jurisdiction affecting taxation which change or amendment                                      A-2-7  EU-DOCS\26039728.6 





 






   has not been publicly announced before and which becomes effective on or after the date of the Offering  Memorandum (or, if the relevant Tax Jurisdiction was not a Tax Jurisdiction on the Issue Date, the date  on which such Tax Jurisdiction became a Tax Jurisdiction under the Indenture); or         (b)   any change in, or amendment to, the existing official written position or the introduction  of a written official position regarding the application, administration or interpretation of such laws,  treaties,  regulations  or  rulings  (including  a  holding,  judgment  or  order  by  a  court  of  competent  jurisdiction or a change in published administrative practice), which change or amendment has not been  publicly  announced  before  and  which  becomes  effective  on  or  after  the  date  of  the  Offering  Memorandum (or, if the relevant Tax Jurisdiction was not a Tax Jurisdiction on the Issue Date, the date  on which such Tax Jurisdiction became a Tax Jurisdiction under the Indenture).        The Issuer will not give any such notice of redemption earlier than 90 days prior to the earliest  date  on  which  the  Issuer  or  the  relevant  Guarantor  would  be  obligated  to  make  such  payment  or  withholding (if a payment in respect of the Notes or the Guarantees were then due) and unless at the  time such notice is given, the obligation to pay Additional Amounts remains in effect.  Prior to the  publication  or,  where  relevant,  mailing  of  any  notice  of  redemption  of  the  Notes  pursuant  to  the  foregoing, the Issuer will deliver the Trustee an Opinion of Counsel, the choice of such counsel to be  subject to the prior written approval of the Trustee (such approval not to be unreasonably withheld) to  the effect that there has been such change or amendment which would entitle the Issuer to redeem the  Notes hereunder and under the Indenture. In addition, before the Issuer publishes or mails notice of  redemption of the Notes as described above, it will deliver to the Trustee an Officer’s Certificate to the  effect that the obligation to pay Additional Amounts cannot be avoided by the Issuer or the relevant  Guarantor (but, in the case of a Guarantor, only if the payment giving rise to such requirement cannot  be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts) taking  reasonable measures available to it.         The Trustee will accept such Officer’s Certificate and Opinion of Counsel as sufficient evidence  of the existence and satisfaction of the conditions precedent as described above, in which event it will  be conclusive and binding on the Holders.     7.   Mandatory Redemption        Except pursuant  to  paragraph 8 and Section 3.10 of  the  Indenture,  the  Issuer  shall  not  be  required to make mandatory redemption payments or sinking fund payments with respect to the Notes.   8.   Special Mandatory Redemption        (a)   In the event that (i) the Completion Date does not take place on or prior to the Longstop  Date; (ii) the Acquisition Agreement is terminated at any time prior to the Longstop Date; or (iii) the  occurrence of an Event of Default under Section 6.01(a)(6) of the Indenture with respect to the Initial  Issuer on or prior to the Longstop Date (the date of any such event being the “Special Termination  Date”), the Initial Issuer will redeem all of the Notes (the “Special Mandatory Redemption”) at a price  (the “Special Mandatory Redemption Price”) equal to 100% of the initial issue price of each Note, plus  accrued  but  unpaid  interest  from  the  Issue  Date  to  (but  not  including)  the  Special  Mandatory  Redemption Date (as defined below and subject to the right of Holders on the relevant record date to  receive interest due on the relevant interest payment date).        (b)   Notice of the Special Mandatory Redemption will be delivered by the Initial Issuer, no  later than one Business Day following the Special Termination Date, to the Trustee and to the Escrow  Agent, and will provide that the Notes shall be redeemed on a date that is no later than the fifth Business  Day after such notice is given by the Issuer in accordance with the terms of the Escrow Agreement (any  such date, a “Special Mandatory Redemption Date”).  On the Business Day immediately preceding the  Special Mandatory Redemption Date, the Trustee or the Escrow Agent (as applicable) shall pay to the  Paying Agent for payment to each holder of Notes to be redeemed the Special Mandatory Redemption  Price for such holder’s Notes.                                        A-2-8  EU-DOCS\26039728.6 





 






        (c)   In the event the Issuer has not delivered the notice to Holders of the Special Mandatory  Redemption in accordance with (b) above, the Trustee, upon the Issuer’s request, shall deliver such  notice on the second Business Day following the Special Termination Date to the Escrow Agent and  the Holders in the Issuer’s name and at the Issuer’s expense.          (d)   If any Notes are listed on an exchange, and the rules of the exchange so require, the  Issuer will notify the exchange of the occurrence of any such Special Mandatory Redemption and any  relevant details relating thereto.   9.   Notice of Redemption        Not less than 10 days but not more than 60 days before a date for redemption of Notes, the  Issuer shall transmit a notice of redemption in accordance with Section 3.03 of the Indenture.   10.  Additional Amounts        All payments made by a payor on the Notes or any Note Guarantee, as applicable, will be made  free and clear of and without withholding or deduction for, or on account of, any Taxes in accordance  with Section 4.02 of the Indenture.   11.  Repurchase of Notes at the Option of Holders        (a)   If  a  Change  of  Control  occurs,  each  Holder  will  have  the  right,  subject  to  certain  conditions specified in the Indenture, to require the Issuer to repurchase all or any part of such Holder’s  Notes at a purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and  unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record  date to receive interest due on the relevant interest payment date) as provided in, and subject to the  terms of, the Indenture.        (b)   In accordance with Section 4.08 of the Indenture, the Issuer will be required to, or may  be permitted to, offer to purchase Notes upon the occurrence of certain events, including certain Asset  Dispositions.        (c)   If Holders of not less than 90% in aggregate principal amount of the outstanding Notes  of a series validly tender and do not validly withdraw such Notes in a Change of Control Offer and the  Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described above,  purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or  such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not  more  than 30 days  following  such  purchase  pursuant  to  the  Change  of  Control  Offer  described  in  Section 4.03(b) of the Indenture, to redeem all Notes that remain outstanding following such purchase  at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to but  excluding the date of the delivery of the notice for such redemption.   12.  Denominations; Transfer; Exchange        The Notes are  in  registered  form  without  interest  coupons  in  minimum  denominations  of  $200,000  and  multiples  of  $1,000  in  excess  thereof. A  Holder  may  transfer  or  exchange Notes in  accordance with the Indenture.        [This Regulation S Temporary Global Note is exchangeable in whole or in part for one or more  Global  Notes  only  (i)  on  or  after  the  termination  of  the  40-day  distribution  compliance  period  (as  defined  in  Regulation  S)  and (ii)  upon  presentation of  certificates (accompanied  by  an  Opinion  of  Counsel, if applicable) required by Article 2 of the Indenture. Upon exchange of this Regulation S                                       A-2-9  EU-DOCS\26039728.6 





 






   Temporary  Global  Note  for  one  or  more  Global  Notes,  the  Trustee  shall  cancel  this  Regulation  S  Temporary Global Note.]1   13.  Persons Deemed Owners        The registered Holder of this Note will be treated as the owner of it for all purposes.   14.  Prescription        Claims against the Issuer or any Guarantor for the payment of principal, or premium, if any, on  the Notes will be prescribed ten years after the applicable due date for payment thereof. Claims against  the Issuer or any Guarantor for the payment of interest on Notes will be prescribed five years after the  applicable due date for payment of interest.   15.  Discharge and Defeasance        The Indenture and the Notes of a series may be discharged, and the Issuer may exercise its legal  defeasance option or covenant defeasance option, as set forth in the Indenture.   16.  Amendment, Waiver        The Indenture and the Notes may be amended as set forth in the Indenture.   17.  Defaults and Remedies        The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture. Upon  the occurrence of an Event of Default, the rights and obligations of the Issuer, the Trustee and the  Holders shall be as set forth in the applicable provisions of the Indenture.   18.  Trustee Dealings with the Issuer        The Trustee under the Indenture, in its individual or any other capacity, may become the owner  or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuer or its  Affiliates and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if  it were not Trustee.   19.  No Recourse Against Others        No director, officer, employee, incorporator or shareholder of the Issuer or any of its respective  Subsidiaries or Affiliates, as such, shall have any liability for any obligations of the Issuer under the  Note Documents or for any claim based on, in respect of, or by reason of, such obligations or their  creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release  are part of the consideration for issuance of the Notes.   20.  Authentication        This Note shall not be valid until an authorized signatory of the Trustee or the Authenticating  Agent manually signs the certificate of authentication on the other side of this Note. The signature shall  be conclusive evidence that the security has been authenticated under the Indenture.   21.  Abbreviations        Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN  COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights                                                         1 Insert for any Regulation S Temporary Global Notes.                                      A-2-10  EU-DOCS\26039728.6 





 






   of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to  Minors Act).   22.  Governing Law        THIS  NOTE  SHALL BE  GOVERNED  BY,  AND  CONSTRUED  IN  ACCORDANCE  WITH, THE LAWS OF THE STATE OF NEW YORK.   23.  Common Codes, ISIN and CUSIP Numbers        The Issuer in issuing the Notes may use Common Codes, ISIN and CUSIP numbers (if then  generally in use) and, if so, the Issuer shall use Common Codes, ISIN and CUSIP numbers in notices  of redemption as a convenience to Holders; provided, however, that any such notice may state that no  representation  is  made  as  to  the  correctness  of  such  numbers  either  as  printed  on  the Notes or  as  contained in any notice of a redemption and that reliance may be placed only on the other identification  numbers printed on the Note, and any such redemption shall not be affected by any defect in or omission  of such numbers.        The Issuer will furnish to any Holder of Notes upon written request and without charge  to the Holder a copy of the Indenture which has in it the text of this Note.                                                                    A-2-11  EU-DOCS\26039728.6 





 






                               ASSIGNMENT FORM        To assign this Note, fill in the form below:   (I)  or  (we) assign  and  transfer  this  Note  to: ________________________________________     (Insert assignee’s legal name)   ___________________________________________________________________________    (Insert assignee’s soc. sec. or tax I.D. no.)   ___________________________________________________________________________   ___________________________________________________________________________   ___________________________________________________________________________    (Print or type assignee’s name, address and zip code)   and  irrevocably  appoint  _________________________________________________________  to  transfer this Note on the books of the Issuer. The agent may substitute another to act for him.   Date: _______________                                 Your Signature: __________________________________                                (Sign exactly as your name appears on the face of                                   this Note)                                                                  Signature Guarantee*: _____________________   *     Participant  in  a  recognized  Signature  Guarantee  Medallion  Program  (or  other  signature  guarantor acceptable to the Trustee).                                                                    A-2-12  EU-DOCS\26039728.6 





 






    [FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF                         TRANSFER RESTRICTED NOTES]        This certificate relates to $ principal amount of Notes held in (check applicable box)     book-entry or   definitive registered form by the undersigned.   The undersigned (check one box below):        has requested the Trustee by written order to deliver, in exchange for its beneficial interest in        the Global Note held by DTC, a Definitive Registered Note in definitive, registered form of        authorized denominations and an aggregate principal amount equal to its beneficial interest in        such Global Note (or the portion thereof indicated above);        has requested the Trustee by written order to exchange or register the transfer of a Note.   In connection with any transfer of any of the Notes evidenced by this certificate occurring prior to the  expiration of the period referred to in Rule 144(d) under the Securities Act, the undersigned confirms  that such Notes are being transferred in accordance with its terms:   CHECK ONE BOX BELOW        (1)         to the Issuer;        (2)         pursuant to a registration statement that has been declared effective under the  U.S. Securities Act of 1933, as amended;        (3)         for so long as the Notes are eligible for resale pursuant to Rule 144A under the  U.S. Securities Act of 1933, as amended, to a person it reasonably believes is a “qualified institutional  buyer” (as defined in Rule 144A under the U.S. Securities Act of 1933, as amended) that purchases for  its own account or for the account of a qualified institutional buyer to whom notice is given that the  transfer is being made in reliance on Rule 144A;        (4)         pursuant to offers  and sales  that occur outside the United  States within the  meaning of Regulation S under the U.S. Securities Act of 1933, as amended; or        (5)         pursuant to another available exemption from the registration requirements of  the U.S. Securities Act of 1933, as amended.        Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced  by this certificate in the name of any Person other than the registered Holder thereof; provided, however,  that if box (5) is checked, the Issuer and the Trustee may require, prior to registering any such transfer  of the Notes, such legal opinions, certifications and other information satisfactory to each of them to  confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject  to, the registration requirements of the U.S. Securities Act of 1933, as amended.   Date: _________________________________________   Your Signature:  __________________________________________________________________________  Sign exactly as your name appears on the other side of this certificate.   Signature Guarantee*: ________________________________________________________   *(Signature must be guaranteed by a participant in a recognized signature guaranty medallion  program or other signature guarantor acceptable to the Trustee)   TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.                                      A-2-13  EU-DOCS\26039728.6 





 






        The undersigned represents and warrants that it is purchasing this Note for its own account or  an account with respect to which it exercises sole investment discretion and that it and any such account  is  a “qualified  institutional  buyer” within  the  meaning  of  Rule 144A  under  the  U.S. Securities  Act  of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that  it  has  received  such  information  regarding the  Issuer  as  the  undersigned  has  requested  pursuant to  Rule 144A or has determined not to request such information and that it is aware that the transferor is  relying  upon  the  undersigned’s  foregoing  representations  in  order  to  claim  the  exemption  from  registration provided by Rule 144A.   Date: _________________________________________   Your Signature:  __________________________________________________________________________  (to be executed by an executive officer of purchaser)                                                                     A-2-14  EU-DOCS\26039728.6 





 






                            [TO BE ATTACHED TO GLOBAL NOTES]                                                        [FORM OF SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL NOTE]   The initial principal amount of this Global Note is $[  ]. The following increases or decreases in this  Global Note have been made:                                                            Principal amount                                            Amount of             of                         Amount of           Increase       this Global Note     Signature of                        Decrease in        in Principal     following such       authorized       Date of        Principal Amount    Amount of this      decrease or    signatory of Trustee   Increase/Decrease of this Global Note   Global Note         increase        or Paying Agent                                                                                                                                                                        A-2-15  EU-DOCS\26039728.6 





 






                 [FORM OF OPTION OF HOLDER TO ELECT PURCHASE]        If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.03 (Change  of Control) or Section 4.08 (Limitation on Sales of Assets and Subsidiary Stock) of the Indenture, check  the box:               Asset Disposition               Change of Control     If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.03 or  Section 4.08 of the Indenture, state the amount (minimum amount of $200,000):                           $ ____________________________   Date: ______________________   Date: _________________________________________   Your Signature:  __________________________________________________________________________  (Sign exactly as your name appears on the other side of the Note)   Signature   Guarantee*: ________________________________________________________________      *(Signature must be guaranteed by a participant in a recognized signature guaranty medallion                program or other signature guarantor acceptable to the Trustee)                                            A-2-16  EU-DOCS\26039728.6 





 






                                   EXHIBIT B                                                             FORM OF CERTIFICATE OF TRANSFER   [Issuer address block]   [Trustee/Registrar address block]        Re: 7.375% Senior Secured Notes due 2027 of BidFair MergeRight Inc.        Reference is hereby made to the Indenture (the “Indenture”), dated as of [    ], 2019, among  [    ], a Delaware corporation (the “Issuer”), the Initial Guarantors and Deutsche Bank Trust Company  Americas, as trustee (the “Trustee”) and paying agent, transfer agent and registrar, and Deutsche Bank  Trust Company Americas, as collateral agent (the “Notes Collateral Agent”). Capitalized terms used  but not defined herein shall have the meanings given to them in the Indenture.        _______________, (the “Transferor”) owns and proposes to transfer the Note[s] or interest in  such Note[s] specified  in Annex A hereto, in the  principal amount of $________________ in such  Note[s]  or  interests  (the “Transfer”),  to  _____________________  (the “Transferee”),  as  further  specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:                             [CHECK ALL THAT APPLY]        1.      Check if Transferee will take delivery of a Book-Entry Interest in the 144A  Global Note or a Definitive Registered Note pursuant to Rule 144A. The Transfer is being effected  pursuant  to  and  in  accordance  with  Rule 144A  under  the  United  States  Securities  Act  of 1933,  as  amended (the “U.S. Securities Act”), and, accordingly, the Transferor hereby further certifies that the  beneficial interest or the Book-Entry Interest or Definitive Registered Note is being transferred to a  Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or the  Book-Entry Interest or Definitive Registered Note for its own account, or for one or more accounts with  respect  to  which  such  Person  exercises sole  investment  discretion,  and  such  Person  and  each  such  account is a “qualified institutional buyer” within the meaning of Rule 144A under the U.S. Securities  Act in a transaction meeting the requirements of Rule 144A under the U.S. Securities Act and such  Transfer is in compliance with any applicable blue sky securities laws of any state of the United States.  Upon  consummation  of  the  proposed  Transfer  in  accordance  with  the  terms  of  the  Indenture,  the  transferred beneficial interest or the Book-Entry Interest or Definitive Registered Note will be subject  to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global  Note and/or the Definitive Registered Note and in the Indenture and the U.S. Securities Act.        2.       Check  if  Transferee  will  take  delivery  of  a  Book-Entry  Interest  in the  Regulation S Global Note or a Definitive Registered Note pursuant to Regulation S. The Transfer  is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the U.S. Securities Act  and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a  person in the United States and (x) at the time the buy order was originated, the Transferee was outside  the  United  States  or  such  Transferor  and  any  Person  acting  on  its  behalf  reasonably  believed  and  believes that the Transferee was outside the United States or (y) the transaction was executed in, on or  through the facilities of a designated offshore securities market, (ii) such Transferor does not know that  the transaction was prearranged with a buyer in the United States, (iii) no directed selling efforts have  been made in connection with the  Transfer in contravention of the  requirements  of Rule 903(b) or  Rule 904(b) of Regulation S under the U.S. Securities Act, (iv) the transaction is not part of a plan or  scheme to evade the registration requirements of the U.S. Securities Act and (v) if the proposed transfer  is being effected prior to the expiration of a Restricted Period, the transferee is not a U.S. Person, as  such term is defined pursuant to Regulation S of the Securities Act, and will take delivery only as a  Book-Entry  Interest  so  transferred  through  DTC. Upon  consummation  of  the  proposed  transfer  in  accordance with the terms of the Indenture, the transferred Book-Entry Interest or Definitive Registered  Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed                                       B-1  EU-DOCS\26039728.6 





 






   on the Regulation S Global Note and/or the Definitive Registered Note and in the Indenture and the  U.S. Securities Act.        This certificate and the statements contained herein are made for your benefit and the benefit  of the Issuer.        3.      Check and complete if Transferee will take delivery of a Book-Entry Interest  in a Global Note or a Definitive Registered Note pursuant to any provision of the U.S. Securities  Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the  transfer restrictions applicable to Book-Entry Interests in Global Notes and Definitive Registered Notes  and pursuant to and in accordance with the U.S. Securities Act and any applicable blue sky securities  laws of any state of the United States.                                             ________________________________                                            [Insert Name of Transferor]                                       By:   _________________________________                                            Name:                                            Title:                                       Dated: ________________________________                                                                    B-2  EU-DOCS\26039728.6 





 






                     ANNEX A TO CERTIFICATE OF TRANSFER        1.   The Transferor owns and proposes to transfer the following:                                  [CHECK ONE]                a Book-Entry Interest in the:                  (i)   144A Global Note ([Common Code][ISIN][CUSIP] ____________), or                  (ii)   Regulation S Global Note ([Common Code][ISIN][CUSIP] _________).        2.   After the Transfer the Transferee will hold:                                  [CHECK ONE]                a Book-Entry Interest in the:                  (i)   144A Global Note ([Common Code][ISIN][CUSIP] ____________), or                  (ii)   Regulation S Global Note ([Common Code][ISIN][CUSIP] _________).                       in accordance with the terms of the Indenture.                                             B-3  EU-DOCS\26039728.6 





 






                                   EXHIBIT C                                                            FORM OF CERTIFICATE OF EXCHANGE   [Issuer address block]   [Trustee/Registrar address block]        Re: 7.375% Senior Secured Notes due 2027 of BidFair MergeRight Inc.        (ISIN ________; Common Code _______; CUSIP __________)        Reference is hereby made to the Indenture (the “Indenture”), dated as of [    ], 2019, among  [    ], a Delaware corporation (the “Issuer”), the Initial Guarantors and Deutsche Bank Trust Company  Americas, as trustee (the “Trustee”) and paying agent, transfer agent and registrar, and Deutsche Bank  Trust Company Americas, as collateral agent (the “Notes Collateral Agent”). Capitalized terms used  but not defined herein shall have the meanings given to them in the Indenture.        __________________, (the “Owner”) owns and proposes to exchange the Note[s] or interest  in such Note[s] specified herein, in the principal amount of $ ____________ in such Note[s] or interests  (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:        1.       Check if Exchange is from Book-Entry Interest in a Global Note for Definitive  Registered Notes. In connection with the Exchange of the Owner’s Book-Entry Interest in a Global  Note for Definitive Registered Notes in an equal amount, the Owner hereby certifies that such Definitive  Registered  Notes  are being acquired for the  Owner’s  own account without transfer. The  Definitive  Registered Notes issued pursuant to the Exchange will bear the Private Placement Legend and will be  subject to restrictions on transfer enumerated in the Indenture and the U.S. Securities Act.        2.       Check if Exchange is from Definitive Registered Notes for Book-Entry Interest  in a Global Note. In connection with the Exchange of the Owner’s Definitive Registered Notes for  Book-Entry Interest in a Global Note in an equal amount, the Owner hereby certifies that such Book-  Entry Interest in a Global Note are being acquired for the Owner’s own account without transfer. The  Book-Entry Interests transferred in exchange will be subject to restrictions on transfer enumerated in  the Indenture and the U.S. Securities Act.        This certificate and the statements contained herein are made for your benefit and the benefit  of the Issuer.                                             ________________________________                                            [Insert Name of Transferor]                                       By:   _________________________________                                            Name:                                            Title:                                       Dated: ________________________________                                                                    C-1  EU-DOCS\26039728.6 





 






                     ANNEX A TO CERTIFICATE OF EXCHANGE        1.   The Owner owns and proposes to exchange the following:   [CHECK ONE OF (a) OR (b)]        (a)      a Book-Entry Interest held through DTC Account No. _________in the:              (i)      144A Global Note ([Common Code][ISIN][CUSIP] __________), or              (ii)     Regulation S Global Note ([Common Code][ISIN][CUSIP] ________), or        (b)      a Definitive Registered Note.        2.   After the Exchange the Owner will hold:   [CHECK ONE OF (a) OR (b)]        (a)      a Book-Entry Interest held through DTC Account No. _________ in the:               (i)     144A Global Note ([Common Code][ISIN][CUSIP] ________), or               (ii)    Regulation S Global Note ([Common Code][ISIN][CUSIP] _________),  or        (b)      a Definitive Registered Note.              in accordance with the terms of the Indenture.                                             C-2  EU-DOCS\26039728.6 





 






                                   EXHIBIT D                                                            FORM OF SUPPLEMENTAL INDENTURE        SUPPLEMENTAL  INDENTURE  dated  as  of [  ],  among  [GUARANTOR]  (the “New  Guarantor”), [    ] (together with its successors and assigns, the “Issuer”) and Deutsche Bank Trust  Company Americas, as trustee (the “Trustee”) and notes collateral agent (the “Notes Collateral Agent”)  under the Indenture referred to below.                                  WITNESSETH:        WHEREAS, the Issuer, the Trustee, the Notes Collateral Agent and the other parties thereto  have heretofore executed and delivered an indenture, dated as of [    ], 2019 (as amended, supplemented,  waived  or  otherwise  modified,  the “Indenture”),  providing  for  the  issuance  of the 7.375%  Senior  Secured Notes due 2027 (the “Notes”)        WHEREAS, pursuant to Sections 9.01, 9.05 and 10.05 of the Indenture, the parties hereto are  authorized to execute and deliver this Supplemental Indenture;        WHEREAS, the New Guarantor is a Restricted Subsidiary of the Issuer;        WHEREAS,  each  party hereto  has  duly  authorized  the  execution  and  delivery  of  this  Supplemental Indenture and has done all things necessary to make this Supplemental Indenture a valid  agreement in accordance with its terms;        NOW,  THEREFORE,  in  consideration  of  the  foregoing  and  for  other  good  and  valuable  consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Issuer, the Trustee  and the Notes Collateral Agent mutually covenant and agree for the equal and ratable benefit of the  Holders of the Notes as follows:                                    ARTICLE 1                                  Defined Terms        Section 1.01 Defined Terms. As used in this Supplemental Indenture, terms defined in the  Indenture or in the preamble or recital thereto are used herein as therein defined. The words “herein,”  “hereof’ and “hereby” and other words of similar import used in this Supplemental Indenture refer to  this Supplemental Indenture as a whole and not to any particular section hereof.                                    ARTICLE 2                   Obligations and Agreements; Agreement to be Bound;                         Agreement to Guarantee; Limitations        Section 2.01 Obligations and Agreements. The New Guarantor hereby becomes a party to  the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations  and agreements of a Guarantor under the Indenture.        Section 2.02 Agreement to be Bound. The New Guarantor agrees to be bound by all of the  provisions  of  the  Indenture  applicable  to  a  Guarantor  and  to  perform  all  of  the  obligations  and  agreements of a Guarantor under the Indenture.        Section 2.03 Agreement  to  Guarantee. The  New  Guarantor  hereby  agrees,  jointly  and  severally  with  all  other  Guarantors  on  the  date  hereof,  to  unconditionally  guarantee  the  Issuer’s  obligations  under  the  Notes  on  the  terms  and  subject  to  the  conditions  set  forth  in  Article 10 and  Article 12 of the Indenture.        Section 2.04 Limitations on Note Guarantee. [insert as applicable]                                       D-1  EU-DOCS\26039728.6 





 






                                    ARTICLE 3                                  Miscellaneous        Section 3.01 Notices. All notices and other communications to the New Guarantor shall be  given as provided in the Indenture, at its address set forth below, with a copy to the Issuer as provided  in the Indenture for notices to the Issuer [  ].        Section 3.02 Parties. Nothing  expressed  or  mentioned  herein  is  intended  or  shall  be  construed to give any Person, firm or corporation, other than the Holders, the Trustee and the Notes  Collateral Agent, any legal or equitable right, remedy or claim under or in respect of this Supplemental  Indenture or the Indenture or any provision herein or therein contained.        Section 3.03 Governing  Law. THIS  SUPPLEMENTAL  INDENTURE  SHALL  BE  GOVERNED  BY,  AND  CONSTRUED  IN  ACCORDANCE  WITH,  THE  LAWS  OF  THE  STATE OF NEW YORK.        Section 3.04 Jurisdiction. The  New  Guarantor  irrevocably  (i) agrees  that  any  legal  suit,  action  or  proceeding  against  it  arising  out  of  or  based  upon  this  Supplemental  Indenture  or  the  transactions contemplated hereby may be instituted in any U.S. Federal or state court in the Borough of  Manhattan, The City of New York court and (ii) waives, to the fullest extent it may effectively do so,  any objection which it may now or hereafter have to the laying of venue of any such proceeding.        Section 3.05 Severability  Clause. In  case  any  one  or  more  of  the  provisions  in  this  Supplemental Indenture shall be held invalid, illegal or unenforceable in any respect for any reason, the  validity, legality and enforceability of any such provision in every other respect and of the remaining  provisions  shall  not  in  any  way  be  affected  or  impaired  thereby,  it  being  intended  that  all  of  the  provisions hereof shall be enforceable to the full extent permitted by law.        Section 3.06 Ratification of Indenture; Supplemental Indentures Part of Indenture. Except  as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms,  conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture  shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter  authenticated and delivered shall be bound hereby. Neither the Trustee nor the Notes Collateral Agent  makes any representation or warranty as to the validity or sufficiency of this Supplemental Indenture.        Section 3.07 Counterparts. The  parties  hereto  may  sign  one  or  more  copies  of  this  Supplemental  Indenture  in  counterparts,  all  of  which  together  shall  constitute  one  and  the  same  agreement.        Section 3.08 Headings. The headings of the Articles and the sections in this Supplemental  Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning  or interpretation of any provisions hereof.        Section 3.09 Successors. All covenants and agreements in this Supplemental Indenture by  the parties hereto shall bind their successors and assigns, whether so expressed or not.        Section 3.10 Trustee and the Notes Collateral Agent. The Trustee and the Notes Collateral  Agent shall not be responsible for or in respect of the sufficiency of this Supplemental Indenture or for  or in respect of the recitals herein, which have been made by the Issuer and the New Guarantor.                                                                     D-2  EU-DOCS\26039728.6 





 






        IN WITNESS WHEREOF, the  parties  have  caused this  Supplemental Indenture  to be  duly  executed as of the date first written above.                                       [NEW GUARANTOR]                                       By: __________________________________                                      Name:                                      Title:                                       BIDFAIR MERGERIGHT INC., as Issuer                                       By: __________________________________                                      Name:                                      Title:                                       DEUTSCHE BANK TRUST COMPANY                                      AMERICAS, as Trustee                                       By: __________________________________                                      Name:                                      Title:                                       By: __________________________________                                      Name:                                      Title:                                             D-3  EU-DOCS\26039728.6 





 






                                   EXHIBIT E                                                               AGREED SECURITY PRINCIPLES   1.   Agreed Security Principles        (a)   The Note Guarantees and security to be provided under the Indenture by any Non-U.S.  Guarantor or by the Issuer and any U.S. Guarantor with respect to Notes Collateral located outside the  United States, any state thereof or the District of Columbia will be given in accordance with the security  principles set out in this Exhibit E (the “Agreed Security Principles”).  For the avoidance of doubt, the  Agreed Security Principles shall not apply to any Note Guarantees to be provided under the Indenture  by the Issuer and any U.S. Guarantor, nor to any security to be provided by the Issuer and any U.S.  Guarantor under a Notes Security Document which is governed by the laws of the United States, any  state thereof or the District of Columbia. Any security given by a Non-U.S. Guarantor over shares in a  Domestic Subsidiary or other assets located in the United States, any state thereof or the District of  Columbia shall be subject to the Agreed Security Principles and further be subject to the Indenture.   This Exhibit E identifies the Agreed Security Principles and addresses the manner in which the Agreed  Security  Principles  will  impact  on  and  determine  the  extent  of  the Notes  Guarantees  and  security  proposed  to  be  provided  in  relation  to  the  Obligations of  the  Issuer  and  the  Gurantors  under  the  Indenture, the Notes and the Note Guarantees (the “Notes Obligations”).  For purposes of these Agreed  Security  Principles,  “Acceleration  Event”  means  the  occurrence  of  an  acceleration  of  the Notes  Obligations under Section 6.02 of the Indenture.        (b)   The Agreed Security Principles embody a recognition by all parties that there may be  certain legal and  practical difficulties in obtaining effective  or commercially reasonable  guarantees  and/or security from all relevant members of the group constituted by Parent Guarantor and the Group  in each jurisdiction in which it has been agreed that guarantees and security will be granted by those  members.  In particular:              (1)   general  legal  and  statutory  limitations,  regulatory restrictions,  financial  assistance, corporate benefit, fraudulent preference, equitable subordination, “transfer pricing,” “thin  capitalization,”  “earnings  stripping,”  “controlled  foreign  corporation”  and  other  non-U.S.  tax  restrictions, “exchange control restrictions” and “capital maintenance” rules, tax restrictions, retention  of title claims, employee consultation or approval requirements and similar principles may limit the  ability of a member of the Group to provide a guarantee or security or may require that the guarantee  or security be limited as to amount or otherwise and, if so, the guarantee or security will be limited  accordingly, provided that, to the extent requested by the Trustee and/or the Notes Collateral Agent  before signing any applicable Notes Security Document, joinder, supplemental indenture or accession  certificate, the relevant member of the Group shall use commercially reasonable efforts (but without  incurring material cost and without adverse impact on relationships with third parties) to overcome any  such obstacle or otherwise such supplemental indenture in respect of a Note Guarantee or Notes Security  Document shall be subject to such limit;              (2)   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 registration) is the applicable time and  cost (including adverse effects on non-U.S. taxes, interest deductibility, stamp duty, registration taxes,  notarial costs and all applicable legal fees) which will not be disproportionate to the benefit accruing to  the Secured Parties of obtaining such guarantee or security (as reasonably determined by the Borrower);              (3)   members of the Group will not be required to give Note Guarantees or enter  into Notes Security Documents if they are not wholly-owned by another member of the Group or if it  is not within the legal capacity of the relevant members of the Group or if it would conflict with the  fiduciary  or  statutory  duties  of  their  directors  or  contravene  any  applicable  legal,  regulatory  or  contractual prohibition or restriction or have the potential to result in a material risk of personal or  criminal liability for any director or officer of or for any member of the Group, provided that, to the                                       E-1  EU-DOCS\26039728.6 





 






   extent requested by the Trustee and/or the Notes Collateral Agent before signing any applicable Notes  Security Document  or supplemental  indenture,  the  relevant  member  of  the  Group  shall  use  commercially reasonable efforts (but without incurring material cost and without adverse impact on  relationships with third parties) to overcome any such obstacle or otherwise such security document  shall be subject to such limit;              (4)   the maximum granted or secured amount may be limited to minimize stamp  duty, notarization, registration or other applicable fees, taxes and duties where the benefit of increasing  the guaranteed or secured amount is disproportionate to the level of such fee, taxes and duties;              (5)   where a class of assets to be secured includes material and immaterial assets, if  the cost of granting security over the immaterial assets is disproportionate to the benefit of such security,  security will be granted over the material assets only;              (6)   it is expressly acknowledged that it may be either impossible or impractical to  create security over certain categories of assets in which event security will not be taken over such  assets;              (7)   any asset subject to a legal requirement, contract, lease, license, instrument or  other third party arrangement, which may prevent or condition the asset from being charged, secured or  being subject to the applicable Notes Security Document (including requiring a consent of any third  party,  supervisory  board  or  works  council  (or  equivalent))  and  any  asset  which,  if  subject  to  the  applicable Notes Security Document, would give a third party the right to terminate or otherwise amend  any rights, benefits and/or obligations with respect to any member of the Group in 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) materially adverse to the interests of the Group or any member thereof, in each  case will be excluded from a Note Guarantee or Notes Security Document, provided that the Group  shall use commercially reasonable efforts to obtain consent to charging any asset (where otherwise  prohibited) if the Trustee and/or the Notes Collateral Agent specifies prior to the date of the applicable  Notes  Security  Document,  joinder,  supplemental  indenture or  accession  certificate  that  the  asset  is  material and the Issuer is satisfied (acting reasonably) that such commercially reasonable efforts will  not involve placing relationships with third parties in jeopardy save that, unless prohibited, this shall  not prevent security from being given over any receipt or recovery under the relevant contract, lease or  license;              (8)   the giving of a guarantee, the granting of security and the registration and/or  the perfection of the security granted will not be required if it would have a material adverse effect on  the ability of the relevant member of the Group to conduct its operations and business in the ordinary  course  as  otherwise  permitted  by  the Indenture (including  dealing  with  the  secured  assets  and  all  contractual  counterparties  or  amending,  waiving  or  terminating  (or  allowing  to  lapse)  any  rights,  benefits  or  obligations,  in  each  case  prior  to  an  Acceleration  Event  which  is  continuing),  and  any  requirement under the Agreed Security Principles to seek consent of any Person or take or not take any  other action shall be subject to this paragraph (8);              (9)   any Notes Security Document will only be required to be notarized if required  by law in order for the relevant security to become effective or admissible in evidence;              (10)  no guarantee from, or security will be required to be given by, Persons or over  (and no consent shall be required to be sought with respect to) assets which are required to support  Acquired Indebtedness to the extent such Acquired Indebtedness is permitted by the Indenture to remain  outstanding after an acquisition. No member of a target group acquired pursuant to an acquisition not  prohibited by the Indenture shall be required to become a Guarantor or grant security in favor of the  Notes Obligations if prevented by the terms of the documentation governing that acquired Indebtedness;  no security will be granted over any asset secured for the benefit of any Indebtedness permitted to be  incurred under Section 4.04 of the Indenture (other than Indebtedness constituting Notes Obligations)                                        D-2  EU-DOCS\26039728.6 





 






   and/or to the extent constituting Liens permitted to be incurred under Section 4.06 of the Indenture  (other than Liens securing the Notes Obligations);              (11)  to the extent possible and unless required by applicable law, there should be no  action required to be taken in relation to the Note Guarantees or the Notes Security Documents when  any Holder transfers any of its Notes to a new Holder (and, unless explicitly agreed to the contrary in  the Indenture, no member of the Group shall bear or otherwise be liable for any taxes, any notarial,  registration or perfection fees or any other costs, fees or expenses that result from any transfer by a  Secured Party);              (12)  no title investigations or other diligence on assets will be required and no title  insurance will be required;              (13)  security will not be required over any assets subject to security in favor of a  third party or any cash constituting regulatory capital or customer cash (and shall be excluded from any  relevant Notes Security Document);              (14)  to the extent legally effective, all security will be given in favor of the Notes  Collateral Agent and not the Secured Parties individually (with the Notes Collateral Agent to hold one  set of security documents for all the Secured Parties);               (15)  “parallel debt” provisions will be used where necessary; and              (16)  the Secured Parties (or any agent or similar representative appointed by them  at the relevant time) will not be able to exercise any power of attorney or set-off granted to them under  the terms of the Indenture prior to the occurrence of an Acceleration Event which is continuing (unless,  in the case of a power of attorney the Issuer or the relevant Guarantor has failed to comply with a further  assurance or perfection obligation (and any grace period applicable thereto has expired)).        (c)   Notwithstanding any term of any Notes Document,               (1)   no Obligation under any Notes Document may be guaranteed by any Excluded  Subsidiary or secured by any Excluded Asset (other than any Excluded Asset referred to under clause  (o) of the definition thereof); and              (2)   Security by Non-U.S. Guarantor shall only by required to be provided:                     (A)   in respect of any Subsidiary Guarantor incorporated under the laws of             England and Wales (a “U.K. Guarantor”), pursuant to an English law debenture (in             respect of, and including a floating charge over, all of its assets and an English law             share mortgage (in respect of the shares in that Subsidiary Guarantor and a foreign law             share  pledge  (in  respect  of  the  shares  held  by  that  U.K.  Guarantor  in  any  other             Restricted Subsidiary located  in a Covered Jurisdiction), and  no collateral over any             other asset or class of asset shall be required;                     (B)   in respect of any Subsidiary Guarantor organized  under the laws of             Hong Kong, pursuant to a Hong Kong law debenture (in respect of, and including a             floating charge over, all of its assets) and a Hong Kong law share mortgage (in respect             of the shares in that Subsidiary Guarantor), and no collateral over any other asset or             class of asset shall be required;                     (C)   in respect of any Subsidiary Guarantor organized  under the laws of             Luxembourg, pursuant to a Luxemburg law governed receivables pledge agreement             over the intercompany receivables owed by Restricted Subsidiaries, a Luxembourg law             governed share pledge agreement in respect of shares of that Luxembourg Subsidiary             Guarantor  and  a  foreign  law  share  pledge  (in  respect  of  the  shares  held  by  that                                       D-3  EU-DOCS\26039728.6 





 






              Subsidiary Guarantor in any other Restricted Subsidiary located in any other Covered             Jurisdiction), and no collateral over any other asset or class of asset shall be required;             and                     (D)   in respect of any Non-U.S. Guarantor organized under the laws of any             other  Covered  Jurisdiction,  over  such  assets  or  classes  of  asset  as  mutually  agreed             between the Issuer and the Trustee.   2.   Guarantees        Subject  to  the  guarantee  limitations  set  out  in  the Notes Documents or  any  applicable  supplemental  indenture,  each Note  Guarantee  will  be  an  upstream,  cross-stream  and  downstream  guarantee  for  all  liabilities  of  the Issuer  and  the  Guarantors under  the Indenture  and  the  Notes in  accordance with, and subject to, the requirements of these Agreed Security Principles in each relevant  jurisdiction  (references  to  “security”  to  be  read  for  this  purpose  as  including  guarantees).  Security  documents will secure the guarantee obligations of the relevant security provider or, if such security is  provided on a third party basis, all liabilities of the Issuer and the Guarantors under the Indenture and  the Notes, in each case in accordance with, and subject to, the requirements of these Agreed Security  Principles in each relevant jurisdiction.   3.   Governing law and scope        (a)   To the extent otherwise consistent with these Agreed Security Principles and subject to  the provisions of the Notes Documents, guarantees and security will be provided only by members of  the Group organized in the United States, any state thereof or the District of Columbia, England and  Wales,  Luxembourg,  Hong  Kong  and  other  jurisdictions  notified  by  the Issuer to  the Trustee and  mutually agreed by the Issuer and the Trustee (“Covered Jurisdictions”). To the extent neither the Issuer  nor any Guarantor is organized in a Covered Jurisdiction, such jurisdiction shall cease to be a Covered  Jurisdiction.          (b)   All security (other than share security over members of the Group incorporated in a  Covered Jurisdiction and security over any intercompany loans between members of the Group) will be  governed by the law of the jurisdiction of incorporation of the applicable Grantor and no action in  relation to security (including any perfection step, further assurance step, filing or registration) will be  required in jurisdictions  where  the  Grantor is  not incorporated.  Share  security over any Subsidiary  incorporated in a Covered Jurisdiction will be governed by the law of that Covered Jurisdiction. Any  security over an intercompany loan 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 place of  incorporation of the relevant lender of the intercompany loan, in each case, only to the extent such  governing law is within a Covered Jurisdiction.   4.   Terms of security documents        The following principles will be reflected in the terms of any security taken in favor of the  Notes Obligations:        (a)   the security will be first ranking, to the extent possible;        (b)   security will not be enforceable until the occurrence of an Acceleration Event;        (c)   the beneficiaries of the security or the Trustee will only be able to exercise a power of  attorney following the occurrence of an Acceleration Event which is continuing or where the Issuer or  the relevant Guarantor has failed to comply with a further assurance or perfection obligation (and any  grace period applicable thereto has expired);                                        D-4  EU-DOCS\26039728.6 





 






        (d)   the Notes Security Documents should only operate  to create security rather than to  impose new commercial obligations or repeat clauses in other Notes Documents; accordingly (i) they  should  not  contain  additional  representations,  undertakings  or  indemnities  (including,  without  limitation, in respect of insurance, information, maintenance or protection of assets or the payment of  fees, costs and expenses) unless these are the same as or consistent with those contained in the Indenture  and are required for the creation or perfection of security (or to maintain the security interest created  thereby);  and  (ii)  nothing  in  any Notes  Security  Document shall  (or  be  construed  to)  prohibit  any  transaction, matter or other step (or a Grantor taking or entering into the same or dealing in any manner  whatsoever in relation to any asset  (including all rights, claims, benefits, proceeds and documentation,  and contractual counterparties in relation thereto)) the subject of (or expressed to be the subject of) the  security agreement if not prohibited by the terms of the other Notes Documents;        (e)   no security will be granted over parts, stock, moveable plant, equipment or receivables  if  it  would  require  labelling,  segregation  or  periodic  listing  or  specification  of  such  parts,  stock,  moveable plant, equipment or receivables;        (f)   in no event shall control agreements (or perfection by control or similar arrangements)  be  required  with  respect  to  any  assets  (including  deposit  or  securities  accounts)  (unless  the Notes  Documents expressly provide for any specific account (by reference to its purpose) to be subject to  specific restrictions on use);        (g)   security will, where possible and practical, automatically create security over future  assets of the same type as those already secured; where applicable Law requires supplemental pledges  or notices to be delivered in respect of future acquired assets in order for effective security to be created  over that class of asset, such supplemental pledges or notices will be provided only upon request of the  Trustee and  at  intervals  no  more  frequent  than  annually  (unless  required  more  frequently  under  applicable law); and        (h)   each security document must contain a clause which records that if there is a conflict  between any Notes Security Document and the Indenture or any Intercreditor Agreement then (to the  fullest extent permitted by law) the provisions of the Indenture or (as applicable) such Intercreditor  Agreement will take priority over the provisions of such Notes Security Document.   5.   Bank accounts        (a)   If the Issuer or a Guarantor grants security over its material bank accounts it will be  free to deal, operate and transact business in relation to those accounts (including opening and closing  accounts)  until  the  occurrence  of  an  Acceleration  Event  which  is  continuing  (unless  the Notes  Documents expressly provide for any specific account (by reference to its purpose) to be subject to  specific restrictions on use). For the avoidance of doubt, (unless the Notes Documents expressly provide  for any specific account (by reference to its purpose) to be subject to specific restrictions on use) there  will be no “fixed” security over 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 which is continuing.        (b)   Where “fixed” security is required, if required by applicable Law to perfect the security  and if possible without disrupting operation of the account, notice of the security will be served on the  account bank in relation to applicable accounts within 10 Business Days of the date of the applicable  Notes Security Document (or accession thereto) and the applicable Grantor will use its commercially  reasonable efforts to obtain an acknowledgement of that notice within 20 Business Days of service. If  the applicable Grantor has used its commercially reasonable efforts but has not been able to obtain  acknowledgement or acceptance its obligation to obtain acknowledgement will cease on the expiry of  that 20 Business Day period. Irrespective of whether notice of the security is required for perfection, if  the service of notice would prevent any member of the Group from using a bank account in the course  of its business no notice of security will be served until the occurrence of an Acceleration Event which  is continuing.                                        D-5  EU-DOCS\26039728.6 





 






        (c)   Any security over bank accounts will be subject to any security interests in favor of the  account bank which are created either by law or in the standard terms and conditions of the account  bank. No Grantor will be required to change its banking arrangements or standard terms and conditions  in connection with the granting of bank account security.        (d)   If required under applicable law, security over bank accounts will be registered subject  to the general principles set out in these Agreed Security Principles.   6.   Fixed assets        If a Loan Party grants security over its material fixed assets it will be free to deal with those  assets in the course of its business until the occurrence of an Acceleration Event 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 which is continuing.   7.   Insurance policies        A member of the Group may grant security over its material insurance policies (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 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 may only be given after the occurrence of an Acceleration Event which is  continuing. Prior to an Acceleration Event which is continuing, no loss payee or other endorsement will  be made on the insurance policy and no Secured Party will be named as coinsured.   8.   Intellectual property        (a)   No security will be  granted over any intellectual property which cannot be  secured  under the terms of the relevant licensing agreement.        (b)   If security is granted over the relevant material intellectual property, the Grantor 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  if  no  longer  material  to  its  business)  until  an  Acceleration Event which is continuing.        (c)   Notice of any security interest over intellectual property will only be served on a third  party from whom intellectual property is licensed upon written request of the Trustee, which may only  be given after the occurrence of an Acceleration Event which is continuing. Subject to the following  sentence, no intellectual property security will be required to be registered under the law of that security  document, the law where the grantor is regulated, or at any applicable supra-national registry. If required  under local law for the perfection of the security and subject always to the general principles set out in  these Agreed Security Principles, security over intellectual property will be registered in the registry of  the jurisdiction in which the Grantor of the security is resident or at a relevant supra-national registry  (such as the European Union). Security over intellectual property rights will be taken on an “as is, where  is” basis and the Group will not be required to procure any changes to, or corrections of filings on,  external registers.   9.   Receivables        If the Issuer or a Guarantor grants security over any of its receivables it will be free to deal with,  amend, waive or terminate those receivables in the course of its business until the 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. 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 will be registered subject to the general principles set out in these Agreed  Security Principles.                                       D-6  EU-DOCS\26039728.6 





 






   10.  Shares        (a)   Security over shares will be limited to those over the Issuer, a Guarantor or a Restricted  Subsidiary other than an Immaterial Subsidiary, or an Excluded Subsidiary (other than to the extent  such shares would not constitute an Excluded Asset pursuant to clause (l) of the definition thereof).        (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 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 Notes 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 Issuer, a Guarantor 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.                                                D-7  EU-DOCS\26039728.6