WisdomTree Investments, Inc.
WisdomTree Investments, Inc. (Form: 8-K, Received: 04/13/2018 11:19:13)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): April 10, 2018

 

 

WisdomTree Investments, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-10932   13-3487784

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

245 Park Avenue

35 th Floor

New York, NY 10167

(Address of principal executive offices, including zip code)

(212) 801-2080

(Registrant’s telephone number, including area code)

n/a

(Former name or former address, if changed since last report.)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 1.01 Entry Into a Material Definitive Agreement

ETFS Acquisition

On November 13, 2017, WisdomTree Investments, Inc., a Delaware corporation (the “Company”) entered into a Share Sale Agreement with ETF Securities Limited (“ETF Securities”) and WisdomTree International Holdings Ltd, an indirect wholly owned subsidiary of the Company (“WisdomTree International”), pursuant to which the Company agreed to acquire ETF Securities’ European exchange-traded commodity, currency and short-and-leveraged business (“ETFS”). On April 11, 2018, the Company completed the acquisition of ETFS (“ETFS Acquisition”) by purchasing the entire issued share capital of a subsidiary of ETF Securities into which ETF Securities transferred ETFS prior to completion of the ETFS Acquisition. ETFS had $17.6 billion of assets under management (“AUM”) as of April 10, 2018. With the addition of ETFS, the Company’s AUM increased to approximately $63.4 billion globally as of April 10, 2018. The ETFS Acquisition elevated the Company to the ninth largest ETP sponsor globally and the largest global independent ETP provider based on AUM, with significant scale and presence in the U.S. and Europe, the two largest ETP markets.

Pursuant to the Share Sale Agreement, the Company acquired ETFS for a purchase price consisting of (a) $253.0 million in cash, subject to customary adjustments for working capital, and (b) a fixed number of shares of the Company’s capital stock, consisting of (i) 15,250,000 shares of common stock (the “Common Shares”) and (ii) 14,750 shares of Series A Non-Voting Convertible Preferred Stock (the “Preferred Shares”), which are convertible into an aggregate of 14,750,000 shares of common stock, subject to certain restrictions as described below under the heading “ Investor Rights Agreement ” and in the disclosure set forth under “ Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year .”

Senior Secured Debt Financing

On April 11, 2018 and in connection with the ETFS Acquisition, the Company and WisdomTree International entered into a credit agreement (the “Credit Agreement”), by and among the Company, WisdomTree International, certain subsidiaries of the Company as guarantors, the lenders party thereto and Credit Suisse AG, Cayman Islands Branch, as administrative agent, collateral agent, L/C Issuer and lender. Under the Credit Agreement, the lenders have extended a $200.0 million term loan (the “Term Loan”) to WisdomTree International, the net cash proceeds of which were used by WisdomTree International, together with other cash on hand, to complete the ETFS Acquisition and pay certain related fees, costs and expenses, and made a $50.0 million revolving credit facility (the “Revolver” and, together with the Term Loan, the “Credit Facility”) available to the Company and WisdomTree International for revolving borrowings from time to time for working capital, capital expenditures and general corporate purposes. Interest on the Term Loan accrues at a rate per annum equal to LIBOR, plus up to 2.00% (commencing at LIBOR, plus 1.75%), and interest on the Revolver accrues at a rate per annum equal to LIBOR, plus up to 1.50% (commencing at LIBOR, plus 1.25%), in each case, with the exact interest rate margin determined based on the Total Leverage Ratio (as defined below). The Revolver is also subject to a facility fee equal to a rate per annum of up to 0.50% of the actual daily amount the aggregate commitments (whether used or unused) under the Revolver, with the exact facility fee rate determined based on the Total Leverage Ratio. The Credit Facility matures on April 11, 2021 (the “Maturity Date”). The Term Loan does not amortize and the entire principal balance is due in a single payment on the Maturity Date.

The Credit Agreement includes a financial covenant that requires that the Company maintain a Total Leverage Ratio, calculated as of the last day of each fiscal quarter commencing with the fiscal quarter ending September 30, 2018, equal to or less than the ratio set forth opposite such fiscal quarter:

 

Fiscal Quarter Ending

   Total Leverage Ratio

September 30, 2018

   2.75:1.00

December 31, 2018

   2.75:1.00

March 31, 2019

   2.75:1.00

June 30, 2019

   2.50:1.00

September 30, 2019

   2.50:1.00

December 31, 2019

   2.50:1.00

March 31, 2020

   2.25:1.00

June 30, 2020

   2.25:1.00
September 30, 2020 and each subsequent fiscal quarter ending on or before the Maturity Date    2.00:1.00

 

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“Total Leverage Ratio” means, as of the last day of any fiscal quarter, the ratio of Consolidated Total Debt of the Company and its restricted subsidiaries (as defined in the Credit Agreement) as of such date to Consolidated EBITDA of the Company and its restricted subsidiaries (as defined in the Credit Agreement) for the four consecutive fiscal quarters ended on such date.

WisdomTree International’s obligations under the Term Loan and the Revolver are unconditionally guaranteed by the Company and certain of its subsidiaries and secured by a lien on substantially all of the present and future property and assets of the Company, WisdomTree International and such subsidiaries, in each case, subject to customary exceptions and exclusions. The Company’s obligations under the Revolver are unconditionally guaranteed by certain of the Company’s wholly-owned domestic subsidiaries and secured by substantially all of the present and future property and assets of the Company and such subsidiaries, in each case, subject to customary exceptions and exclusions.

The Credit Agreement contains customary affirmative covenants for transactions of this type and other affirmative covenants agreed to by the parties, including, among others, the provision of annual and quarterly financial statements and compliance certificates, maintenance of property, insurance, compliance with laws and environmental matters. The Credit Agreement contains customary negative covenants, including, among others, restrictions on the incurrence of indebtedness, granting of liens, making investments and acquisitions, paying dividends, repurchasing equity interests of the Company, entering into affiliate transactions and asset sales. The Credit Agreement also provides for a number of customary events of default, including, among others, payment, bankruptcy, covenant, representation and warranty, change of control and judgment defaults.

The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the Credit Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

Investor Rights Agreement

On April 11, 2018 and in connection with the ETFS Acquisition, the Company entered into an Investor Rights Agreement with ETF Securities, pursuant to which, among other things:

 

    Lock-Up . Until July 6, 2019, without the Company’s prior written approval, ETF Securities may not dispose of any shares of the Company’s common stock or common stock equivalents; provided, however, that ETF Securities will not be prohibited from disposing up to: (i) 10,000,000 shares from and after July 11, 2018; and (ii) 20,000,000 shares from and after January 7, 2019.

 

    Standstill . Until the earliest to occur of: (a) the date the beneficial ownership of ETF Securities (together with certain attribution parties) collectively no longer represents at least 5% of the Company’s outstanding common stock; (b) April 11, 2021; (c) the date a change of control of the Company is consummated; and (d) the date of certain corporate changes as more fully described in the Investor Rights Agreement, ETF Securities (together with certain attribution parties) will not engage in activities such as acting alone or in concert with others to seek to control the management, board of directors or policies of the Company, including, directly or indirectly, soliciting proxies for stockholder proposals.

 

    Voting Restrictions . Until the earliest to occur of: (a) July 11, 2019; (b) the date a change of control of the Company is consummated; and (c) the date of certain corporate changes as more fully described in the Investor Rights Agreement, ETF Securities will vote all of the Company’s voting securities as to which ETF Securities is entitled to vote in accordance with the recommendation of the Company’s Board of Directors.

 

    Registration Rights . From and after July 11, 2018 until April 11, 2023, ETF Securities may request that the Company prepare and file a registration statement covering the resale of the Common Shares and the shares of common stock issuable upon conversion of the Preferred Shares. In addition, from and after July 11, 2018, ETF Securities may request to sell all or any portion of the Common Shares and the shares of common stock issuable upon conversion of the Preferred Shares pursuant to specified block trades, underwritten shelf takedowns and other private placements, in each case, subject to and in accordance with the limitations set forth in the Investor Rights Agreement. Under the Investor Rights Agreement, ETF Securities is also entitled to certain “piggyback” registration rights in connection with certain underwritten offerings of the Company’s common stock by the Company or certain of the Company’s existing stockholders.

The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the Investor Rights Agreement, which is filed as Exhibit 4.1 to this Current Report on Form 8-K incorporated herein by reference.

 

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Waiver and Variation Agreement

On April 11, 2018, the Company and WisdomTree International entered into a Waiver and Variation agreement with ETF Securities in relation to the Share Sale Agreement, pursuant to which, among other things:

 

    Waiver of Jersey Anti-Trust Condition. The parties agreed to waive the condition to completing the ETFS Acquisition that the Jersey Competition Regulatory Authority (the “JCRA”) approve the ETFS Acquisition. Following discussions with the JCRA the parties agreed that an application for approval from the JCRA was not necessary.

 

    Payment of the Escrow Amount. The parties agreed that ETF Securities, rather than WisdomTree International, would pay specified escrow monies into an escrow account on completion of the ETFS Acquisition, and the cash consideration WisdomTree International would have otherwise deposited into such escrow account would instead be paid by WisdomTree International to ETF Securities upon completion of the ETFS Acquisition.

The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the Waiver and Variation Agreement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K incorporated herein by reference.

Item 2.01 Completion of Acquisition or Disposition of Assets.

Please see the disclosure set forth under “ Item 1.01 Entry into a Material Definitive Agreement ” regarding the completion of the ETFS Acquisition, which is incorporated by reference into this Item 2.01.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On April 10, 2018, the Company filed a Certificate of Designations of Series A Non-Voting Convertible Preferred Stock with the Secretary of State of the State of Delaware establishing the rights, preferences, privileges, qualifications, restrictions, and limitations relating to the Preferred Shares. The Preferred Shares are intended to provide ETF Securities with economic rights equivalent to the Company’s common stock on an as converted basis. The Preferred Shares have no voting rights, are not transferrable and have the same priority with regard to dividends, distributions and payments as the common stock.

In connection with the completion of the ETFS Acquisition, the Company issued 14,750 Preferred Shares, which are convertible into an aggregate of 14,750,000 shares of common stock, subject to certain restrictions as described in this Item 5.03 and above under the heading “ Item 1.01 Entry Into a Material Definitive Agreement – Investor Rights Agreement .”

Restrictions on Conversion of Preferred Shares

The Preferred Shares are convertible into 14,750,000 shares of the Company’s common stock, subject to the following restrictions:

 

    Limitation on beneficial ownership . As described in the Certificate of Designations, the Company will not issue, and ETF Securities will not have the right to require the Company to issue, any shares of common stock upon conversion of the Preferred Shares if, as a result of such conversion, ETF Securities (together with certain attribution parties) would beneficially own more than 9.99% of the Company’s outstanding common stock immediately after giving effect to such conversion.

 

    Exchange Cap . As described in the Certificate of Designations, the Company will not issue any shares of common stock upon conversion of the Preferred Shares if the issuance would, together with up to 4,000,000 shares of common stock that the Company may, but is not obligated to, issue prior to December 31, 2018, exceed the aggregate number of shares of common stock that the Company may issue without breaching its obligations under Nasdaq Capital Market Listing Rule 5635(a)(1), unless the Company obtains stockholder approval for the issuance of the Company’s common stock upon conversion of the Preferred Shares in excess of such amount (“Exchange Cap”).

Redemption Rights

ETF Securities has the right to redeem the Preferred Shares under the following circumstances. However, the Company will not be obligated to make any such redemption payments to the extent such payments would be a breach of any covenant or obligation the Company owes to any of its secured creditors or is otherwise prohibited by applicable law.

 

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    Redemption right for failure to obtain stockholder approval . If stockholder approval for the issuance of the Company’s common stock upon conversion of the Preferred Shares in excess of the Exchange Cap is not obtained by December 31, 2018, ETF Securities will have the right, at its option, to require the Company to redeem the 6,633 Preferred Shares subject to the Exchange Cap during the period ending on the earlier of (a) December 31, 2020 and (b) the date stockholder approval for the issuance of the Company’s common stock upon conversion of the Preferred Shares in excess of the Exchange Cap is obtained. Any such redemption will be at a price per Preferred Share equal to the dollar volume-weighted average price for a share of common stock for the 30-trading day period ending on December 31, 2018 multiplied by 1,000. Such redemption payments will be made in 12 equal installments no later than 10 business days following the last day of each of the Company’s 12 fiscal quarters beginning on the day following the date ETF Securities exercises such redemption right.

 

    Other redemption rights unrelated to stockholder approval . In the event that: (a) the number of shares of the Company’s common stock authorized by its certificate of incorporation is insufficient to permit the Company to convert all of the Preferred Shares requested by ETF Securities to be converted; or (b) ETF Securities does not, upon completion of a change of control of the Company, receive the same amount per Preferred Share as it would have received had each outstanding Preferred Share been converted into common stock immediately prior to the change of control, ETF Securities will have the right, at its option, to require the Company to redeem all the Preferred Shares specified to be converted during the period of time specified in the Certificate of Designations. Any such redemption will be at a price per Preferred Share equal to the dollar volume-weighted average price for a share of common stock for the 30-trading day period ending on the date of such attempted conversion or change of control, as applicable, multiplied by 1,000. Such redemption payment will be made in one payment no later than 10 business days following the last day of the Company’s first fiscal quarter that begins on a date following the date ETF Securities exercises such redemption right.

The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the Certificate of Designations, which is filed as Exhibit 3.1 to this Current Report on Form 8-K and incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits:

 

Exhibit 3.1    Certificate of Designations of Series A Non-Voting Convertible Preferred Stock of WisdomTree Investments, Inc., filed with the Secretary of State of the State of Delaware on April 10, 2018.
Exhibit 4.1    Investor Rights Agreement, dated April 11, 2018, between the Company and ETF Securities.
Exhibit 10.1    Credit Agreement, dated April  11, 2018, by and among the Company, WisdomTree International, certain subsidiaries of the Company as guarantors, the lenders party thereto and Credit Suisse AG, Cayman Islands Branch, as administrative agent, collateral agent, L/C Issuer and lender.
Exhibit 10.2    Waiver and Variation Agreement, dated April 11, 2018, by and among the Company, WisdomTree International and ETF Securities Limited.
Exhibit 99.1    Press Release, dated April 12, 2018.

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

WisdomTree Investments, Inc.
By:   /s/ Peter M. Ziemba
Peter M. Ziemba
Executive Vice President and
    Chief Administrative Officer

Date: April 13, 2018

 

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Exhibit 3.1

CERTIFICATE OF DESIGNATIONS

OF

SERIES A NON-VOTING CONVERTIBLE PREFERRED STOCK

OF

WISDOMTREE INVESTMENTS, INC.

WisdomTree Investments, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “ Corporation ”), hereby certifies that the following resolution was adopted by the Board of Directors of the Corporation (the “ Board of Directors ” or the “ Board ”) as required by Section 151 of the General Corporation Law of the State of Delaware at a meeting duly called and held on November 12, 2017:

RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors in accordance with the Amended and Restated Certificate of Incorporation of the Corporation, the Board of Directors hereby creates a series of preferred stock, par value $0.01 per share, of the Corporation designated as Series A Non-Voting Convertible Preferred Stock, and hereby states the designation and number of shares, and fixes the relative rights, preferences and limitations thereof as follows:

SERIES A NON-VOTING CONVERTIBLE PREFERRED STOCK

1.     Designation and Number of Shares . There shall hereby be created and established a series of preferred stock of the Corporation designated as “Series A Non-Voting Convertible Preferred Stock” (the “ Preferred Shares ”). The authorized number of Preferred Shares shall be Fourteen Thousand Seven Hundred Fifty (14,750) . Each Preferred Share shall have a par value of $0.01. Capitalized terms not defined herein shall have the meaning as set forth in Section 14 below.

2.     Ranking . The Preferred Shares shall rank junior with regard to dividends, distributions and payments to the Senior Stock. The Preferred Shares shall have the same priority, with regard to dividends, distributions and payments as the Common Stock.

3.     Dividends . From and after the first date of issuance of any Preferred Shares (the “ Initial Issuance Date ”), the holder of Preferred Shares (“ Holder ”) shall be entitled to receive any dividends (“ Dividends ”) in accordance with Section 4(f) or Section 8 below.

4.     Conversion; Change of Control . At any time after the Initial Issuance Date, each Preferred Share shall be convertible into validly issued, fully paid and non-assessable shares of Common Stock (as defined below), on the terms and conditions set forth in this Section 4.

(a)     Holder s Conversion Right . Subject to the provisions of Section 4(d), at any time or times on or after the Initial Issuance Date, Holder shall be entitled to convert any portion of the outstanding Preferred Shares held by Holder into validly issued, fully paid and non-assessable shares of Common Stock in accordance with Section 4(c) at the Conversion Rate (as defined below). The Corporation shall not issue any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share of Common Stock, the Corporation shall round such fraction of a share of Common Stock to the nearest whole share. Holder shall pay any and all transfer, stamp, issuance and similar taxes that may be payable with respect to any transfer of Preferred Shares or transfer of any Common Stock issuable upon conversion of any Preferred Shares.


(b)     Conversion Rate . Each Preferred Share shall be convertible into One Thousand (1,000) shares of Common Stock (the “ Conversion Rate ”) upon any conversion pursuant to Section 4(a), subject to adjustment as provided herein:

(c)     Mechanics of Conversion . The conversion of each Preferred Share shall be conducted in the following manner:

(i)      Optional Conversion . To convert a Preferred Share into shares of Common Stock on any date (a “ Conversion Date ”), Holder shall deliver (via facsimile or electronic mail), for receipt on or prior to 11:59 p.m., New York time, on such date, a copy of an executed notice of conversion of the share(s) of Preferred Shares subject to such conversion in the form attached hereto as Exhibit I (the “ Conversion Notice ”) to the Corporation. If required by Section 4(c)(ii), within two (2) Trading Days following a conversion of any such Preferred Shares as aforesaid, Holder shall surrender to the Corporation the original certificates, if any, representing the Preferred Shares (the “ Preferred Share Certificates ”) so converted as aforesaid (or an indemnification undertaking with respect to the Preferred Shares in the case of its loss, theft or destruction as contemplated by Section 9(b)). On or before the first (1 st ) Trading Day following the date of receipt of a Conversion Notice, the Corporation shall transmit by facsimile or electronic mail an acknowledgment of confirmation, in the form attached hereto as Exhibit II , of receipt of such Conversion Notice to Holder and the Corporation’s transfer agent (the “ Transfer Agent ”), which confirmation shall constitute an instruction to the Transfer Agent to process such Conversion Notice in accordance with the terms herein. On or before the second (2 nd ) Trading Day following the date of receipt of a Conversion Notice (or such earlier date as required pursuant to the Exchange Act or other applicable law, rule or regulation for the settlement of a trade initiated on the applicable Conversion Date of such shares of Common Stock issuable pursuant to such Conversion Notice), the Corporation shall (1) provided that the Transfer Agent is participating in The Depository Trust Corporation’s (“ DTC ”) Fast Automated Securities Transfer Program, credit such aggregate number of shares of Common Stock to which Holder shall be entitled to Holder’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or (2) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver (via reputable overnight courier) to the address as specified in such Conversion Notice, a certificate, registered in the name of Holder or its designee, for the number of shares of Common Stock to which Holder shall be entitled. If the number of Preferred Shares represented by the Preferred Share Certificate(s) submitted for conversion pursuant to Section 4(c)(ii) is greater than the number of Preferred Shares being converted, then the Corporation shall, as soon as practicable and in no event later than two (2) Trading Days after receipt of the Preferred Share Certificate(s) and at its own expense, issue and deliver to Holder a new Preferred Share Certificate (in accordance with Section 9(c)) representing the number of Preferred Shares not converted.

 

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(ii)      Registration; Book-Entry . At the time of issuance of any Preferred Shares hereunder, Holder may, by written request (including by electronic-mail) to the Corporation, elect to receive such Preferred Shares in the form of one or more Preferred Share Certificates or in Book-Entry form. The Corporation (or the Transfer Agent, as custodian for the Preferred Shares) shall maintain a register (the “ Register ”) for the recordation of the name and address of Holder and whether the Preferred Shares are held by Holder in Preferred Share Certificates or in Book-Entry form. The entries in the Register shall be conclusive and binding for all purposes absent manifest error. Notwithstanding anything to the contrary set forth in this Section 4, following conversion of any Preferred Shares in accordance with the terms hereof, Holder shall not be required to physically surrender such Preferred Shares held in the form of a Preferred Share Certificate to the Corporation unless (A) the full or remaining number of Preferred Shares represented by the applicable Preferred Share Certificate are being converted (in which event such certificate(s) shall be delivered to the Corporation as contemplated by this Section 4(c)(ii)) or (B) Holder has provided the Corporation with prior written notice (which notice may be included in a Conversion Notice) requesting reissuance of Preferred Shares upon physical surrender of the applicable Preferred Share Certificate. In the event of any dispute or discrepancy, the records of the Corporation establishing the number of Preferred Shares to which Holder is entitled shall be controlling and determinative in the absence of manifest error. Each Preferred Share Certificate shall bear the following legend:

THE SHARES OF SERIES A NON-VOTING CONVERTIBLE PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE ARE NOT TRANSFERABLE, OTHER THAN BY THE ISSUER OR AN AFFILIATE OF THE ISSUER. THE NUMBER OF SHARES OF SERIES A NON-VOTING CONVERTIBLE PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE MAY BE LESS THAN THE NUMBER OF SHARES OF SERIES A NON-VOTING CONVERTIBLE PREFERRED STOCK STATED ON THE FACE HEREOF PURSUANT TO SECTION 4(c)(ii) OF THE CERTIFICATE OF DESIGNATIONS RELATING TO THE SHARES OF SERIES A NON-VOTING CONVERTIBLE PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE.

THE CORPORATION WILL FURNISH TO ANY STOCKHOLDER, UPON REQUEST AND WITHOUT CHARGE, A FULL STATEMENT OF

 

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THE DESIGNATIONS, POWERS, RIGHTS, PREFERENCES, QUALIFICATIONS, RESTRICTIONS AND LIMITATIONS OF THE SHARES OF EACH CLASS AND SERIES OF THE CAPITAL STOCK OF THE CORPORATION AUTHORIZED TO BE ISSUED SO FAR AS THE SAME HAVE BEEN DETERMINED. SUCH REQUEST MAY BE MADE TO THE SECRETARY OF THE CORPORATION.

(d)     Limitation on Beneficial Ownership .

(i) Subject to paragraph 4(d)(ii), the Corporation shall not effect the conversion of any of the Preferred Shares held by Holder, and Holder shall not have the right to convert any of the Preferred Shares held by Holder pursuant to the terms and conditions of this Certificate of Designations and any such conversion shall be null and void and treated as if never made, to the extent that after giving effect to such conversion, Holder together with the other Attribution Parties collectively would beneficially own in excess of 9.99% (the “ Maximum Percentage ”) of the shares of Common Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by Holder and the other Attribution Parties shall include the number of shares of Common Stock held by Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion of the Preferred Shares with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) conversion of the remaining, nonconverted Preferred Shares beneficially owned by Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Corporation (including, without limitation, any convertible notes, convertible preferred stock or warrants) beneficially owned by Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 4(d)(i). For purposes of this Section 4(d)(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of determining the number of outstanding shares of Common Stock Holder may acquire upon the conversion of such Preferred Shares without exceeding the Maximum Percentage, Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Corporation’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Corporation or (z) any other written notice by the Corporation or the Transfer Agent, if any, setting forth the number of shares of Common Stock outstanding (the “ Reported Outstanding Share Number ”). If the Corporation receives a Conversion Notice from Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported

 

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Outstanding Share Number, the Corporation shall notify Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Conversion Notice would otherwise cause Holder’s and the other Attribution Parties’ beneficial ownership, as determined pursuant to this Section 4(d)(i), to exceed the Maximum Percentage, Holder must notify the Corporation of a reduced number of shares of Common Stock to be purchased pursuant to such Conversion Notice. For any reason at any time, upon the written request of Holder, the Corporation shall within two (2) Business Days confirm orally and in writing or by electronic mail to Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including such Preferred Shares, by Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to Holder upon conversion of such Preferred Shares results in Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “ Excess Shares ”) shall be deemed null and void and shall be cancelled ab initio, and neither Holder nor the other Attribution Parties shall have the power to vote or to transfer the Excess Shares. For purposes of clarity, the shares of Common Stock issuable to Holder pursuant to the terms of this Certificate of Designations in excess of the Maximum Percentage shall not be deemed to be beneficially owned by Holder together with the other Attribution Parties for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. No prior inability to convert such Preferred Shares pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of convertibility. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(d)(i) to the extent necessary to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 4(d)(i) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived.

(ii) Principal Market Regulation . The Corporation shall not issue any shares of Common Stock upon conversion of any Preferred Shares or otherwise pursuant to the terms of this Certificate of Designations if the issuance of such shares of Common Stock, plus the Exempt Offering Shares, would exceed the aggregate number of shares of Common Stock which the Corporation may issue upon conversion of the Preferred Shares under Rule 5635(a) of the listing rules of the Nasdaq Stock Market (the number of shares which may be issued without violating such rule, the “ Exchange Cap ”), except that such limitation shall not apply in the event that the Corporation obtains the approval of its stockholders as required by the applicable rules of the Nasdaq Capital Market for issuances of shares of Common Stock in excess of such amount (the “ Nasdaq Approval ”).

 

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(e)     Change of Control .

(i)      General . If at any time on or after the Initial Issuance Date a Change of Control is consummated, the Holder will be entitled to be paid such amount per Preferred Share as would have been payable in respect of each Preferred Share outstanding immediately prior to the consummation of such Change of Control had each such Preferred Share been converted into Common Stock pursuant to Section 4(a) immediately prior to the consummation of such Change of Control (the “ Change of Control Payment ”).

(ii) Notwithstanding the foregoing, if at any time on or after the Initial Issuance Date a Change of Control is consummated and the Holder does not receive the Change of Control Payment pursuant to Section 4(e)(i), the Holder will not be entitled to be paid the Change of Control Payment, and in lieu of the Change of Control Payment the Holder shall have the right to redeem the Preferred Shares in accordance with Section 5(c) below (the “ Backstop Redemption Triggering Event ”).

(f)     Adjustment of Conversion Rate upon Subdivision or Combination of Common Stock or Fundamental Transaction .

(i) Without limiting any provision of Section 8, if the Corporation at any time on or after the Initial Issuance Date subdivides (by any stock split, stock dividend, stock combination, recapitalization or other similar transaction) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the Conversion Rate in effect immediately prior to such subdivision will be proportionately increased. Without limiting any provision of Section 8, if the Corporation at any time on or after the Initial Issuance Date combines (by any stock split, stock dividend, stock combination, recapitalization or other similar transaction) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Conversion Rate in effect immediately prior to such combination will be proportionately decreased. Any adjustment pursuant to this Section 4(f) shall become effective immediately after the effective date of such subdivision or combination.

(ii) If at any time, or from time to time, on or after the Initial Issuance Date a Fundamental Transaction is consummated (other than a Change of Control) in such a way that holders of Common Stock shall be entitled to receive stock, securities, cash or assets with respect to or in exchange for Common Stock, then, as a condition of such Fundamental Transaction, lawful and adequate provisions shall be made whereby the Holder shall have the right to receive for each share of Common Stock

 

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that would have been issuable upon conversion of the Preferred Shares pursuant to this Certificate of Designations immediately prior to the consummation of such Fundamental Transaction (without taking into account any limitations or restrictions on the convertibility of the Preferred Shares), the kind and amount of stock, securities, cash or assets receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock into which the Preferred Shares are convertible pursuant to this Certificate of Designations immediately prior to such Fundamental Transaction (without taking into account any limitations or restrictions on the convertibility of the Preferred Shares).

5.     Redemption.

(a)     Redemption Right . Subject to Section 5(d), if the Corporation shall have failed to obtain the Nasdaq Approval at, or prior to, the Triggering Event Date, Holder shall have the right (the “ Redemption Right ”) beginning on the date following the Triggering Event Date and ending on the earlier to occur of: (i) the second (2 nd ) anniversary of the Triggering Event Date; or (ii) the date on which the Corporation shall have obtained the Nasdaq Approval to require the Corporation to redeem all of the Preferred Shares then held by Holder that are convertible into a number of shares of Common Stock that exceeds the Exchange Cap by delivering written notice thereof to the Corporation (the “ Redemption Notice ”) together with the applicable Preferred Share Certificates, if any, which Redemption Notice shall indicate that Holder is electing to redeem all of such Preferred Shares. Each of the Preferred Shares subject to redemption by the Corporation pursuant to this Section 5(a) shall be redeemed by the Corporation at a price equal to the Redemption Price. Payment of the Redemption Price required by this Section 5(a) shall be made in accordance with the provisions of Section 5(b) and Section 5(d). Notwithstanding anything to the contrary in this Section 5(a), but subject to Section 4(d), until the Redemption Price for each Preferred Share is paid in full, the Preferred Shares that have not been so redeemed under this Section 5(a) may be converted, in whole or in part, by Holder into Common Stock pursuant to Section 4(a); provided , that the Corporation shall not be obligated to pay Holder the Redemption Price in respect of any Preferred Shares so converted into shares of Common Stock. Holder’s right to exercise the Redemption Right and receive the Redemption Price in accordance with this Section 5 shall be Holder’s sole and exclusive remedy against the Corporation, its Affiliates and any other Person, and Holder shall be deemed to have waived all other remedies (including equitable remedies), with respect to any failure by the Corporation to obtain the Nasdaq Approval.

(b)     Redemption Mechanics . If Holder submits a Redemption Notice in accordance with Section 5(a), the Corporation shall pay Holder an amount equal to one twelfth (1/12 th ) of the aggregate Redemption Price payable in respect of all Preferred Shares to be redeemed pursuant to Section 5(a) by wire transfer of immediately available funds to the account(s) designated in the Redemption Notice (each, a “ Quarterly Redemption Payment ”) as soon as reasonably practicable, but in no event later than ten (10) Business Days, following the last day of each of the Corporation’s twelve (12) fiscal quarters that begin on a date following the date of the Redemption Notice (each, a

 

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Quarterly Redemption Payment Date ”). Upon payment of any Quarterly Redemption Payment, a number of Preferred Shares equal to the quotient of: (i) such Quarterly Redemption Payment; divided by (ii) the Redemption Price, will be automatically cancelled without any further action on the part of the Corporation, Holder or any other Person and such cancelled Preferred Shares shall no longer be issued and outstanding shares of capital stock of the Corporation. In the event that the Corporation does not pay to Holder any Quarterly Redemption Payment in full within the time period required for any reason (including, without limitation, to the extent such payment is prohibited pursuant to Section 5(d) or applicable law), at any time thereafter and until the Corporation pays such unpaid Quarterly Redemption Payment in full, Holder shall have the option, in lieu of redemption, to require the Corporation to promptly return to Holder all or any of the Preferred Shares that were submitted for redemption and for which the applicable Quarterly Redemption Payment has not been paid. Upon the Corporation’s receipt of such notice, (A) the Redemption Notice shall be null and void with respect to such Preferred Shares, and (B) the Corporation shall immediately return the applicable Preferred Share Certificate, or issue a new Preferred Share Certificate (in accordance with Section 8(d)), to Holder (unless the Preferred Shares are held in Book-Entry form, in which case the Corporation shall deliver evidence to Holder that a Book-Entry for such Preferred Shares then exists).

(c)     Other Redemption Right .

(i) Subject to Section 5(d), if as of any Conversion Date, the number of shares of Common Stock authorized by the Corporation’s certificate of incorporation is insufficient to permit the Corporation to convert all of the Preferred Shares requested by Holder in the applicable Conversion Notice to be converted into shares of Common Stock, Holder shall have the right (the “ Authorized Share Redemption Right ”) beginning on the date following the applicable Conversion Date and ending on the date on which the Corporation’s certificate of incorporation authorizes a sufficient number of shares of Common Stock to permit the Corporation to convert all of the Preferred Shares then-outstanding into shares of Common Stock, to require the Corporation to redeem all of the Preferred Shares set forth in the applicable Conversion Notice that have not been converted to shares of Common Stock on the applicable Conversion Date (the “ Authorized Shares Preferred Shares ”) by delivering written notice thereof to the Corporation (the “ Authorized Shares Redemption Notice ”) together with the applicable Preferred Share Certificates, if any.

(ii) Subject to Section 5(d), if as of any Conversion Date, in the event that a Backstop Redemption Triggering Event has occurred, Holder shall have the right (the “ Backstop Redemption Right ”, and together with the Authorized Share Redemption Right, the “ Other Redemption Right ”) beginning on the date following the consummation of the applicable Change of Control and ending on the two (2) year anniversary of the consummation of such Change of Control, to require the

 

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Corporation to redeem all of the Preferred Shares (the “ Backstop Preferred Shares ”, and together with the Authorized Share Preferred Shares, the “ Other Preferred Shares ”) by delivering written notice thereof to the Corporation (the “ Backstop Redemption Notice ”, and together with the Authorized Share Redemption Notice, the “ Other Redemption Notice ”) together with the applicable Preferred Share Certificates, if any.

(iii) Each Other Redemption Notice shall indicate that Holder is electing to redeem all of such Other Preferred Shares. Each of the Other Preferred Shares subject to redemption by the Corporation pursuant to this Section 5(c) shall be redeemed by the Corporation at a price equal to the Redemption Price. Payment of the Redemption Price required by this Section 5(c) shall be made by wire transfer of immediately available funds to the account(s) designated in the Other Redemption Notice (each, an “ Other Redemption Payment ”) as soon as reasonably practicable, but in no event later than ten (10) Business Days, following the last day of the Corporation’s first (1 st ) quarter that begins on a date following the date of the Other Redemption Notice (each, an “ Other Redemption Payment Date ”). Notwithstanding anything to the contrary in this Section 5(c), but subject to Section 4(d), until the Redemption Price for each Other Preferred Share is paid in full, the Other Preferred Shares that have not been so redeemed under this Section 5(c) may be converted, in whole or in part, by Holder into Common Stock pursuant to Section 4(a) if the Corporation has obtained stockholder approval to increase the number of shares of Common Stock authorized by the Corporation’s certificate of incorporation to permit such conversion; provided , that the Corporation shall not be obligated to pay Holder the Redemption Price in respect of any Other Preferred Shares so converted into shares of Common Stock. Holder’s right to exercise the Other Redemption Right and receive the Redemption Price in accordance with this Section 5(c) shall be Holder’s sole and exclusive remedy against the Corporation, its Affiliates and any other Person, and Holder shall be deemed to have waived all other remedies (including equitable remedies), with respect to any failure by the Corporation to convert any of the Other Preferred Shares into shares of Common Stock. Upon payment of the applicable Other Redemption Payment for any Other Preferred Shares, a number of Other Preferred Shares equal to the quotient of: (i) such Other Redemption Payment; divided by (ii) the Redemption Price, will be automatically cancelled without any further action on the part of the Corporation, Holder or any other Person and such cancelled Other Preferred Shares shall no longer be issued and outstanding shares of capital stock of the Corporation. In the event that the Corporation does not pay to Holder any Other Redemption Payment in respect of any Other Preferred Shares in full within the time period required for any reason (including, without limitation, to the extent such payment is prohibited pursuant to Section 5(d) or applicable law), at any time thereafter and until the Corporation pays such unpaid Other

 

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Redemption Payment in full, Holder shall have the option, in lieu of redemption, to require the Corporation to promptly return to Holder all or any of the Other Preferred Shares that were submitted for redemption and for which the applicable Other Redemption Payment has not been paid. Upon the Corporation’s receipt of such notice, (A) the Other Redemption Notice shall be null and void with respect to such Other Preferred Shares, and (B) the Corporation shall immediately return the applicable Preferred Share Certificate, or issue a new Preferred Share Certificate (in accordance with Section 9(c)), to Holder (unless the Preferred Shares are held in Book-Entry form, in which case the Corporation shall deliver evidence to Holder that a Book-Entry for such Other Preferred Shares then exists).

(d)     Senior Debt Obligations. Notwithstanding anything in this Certificate of Designations to the contrary, the Corporation shall not be obligated to make any Quarterly Redemption Payment or Other Redemption Payment (each, a “ Redemption Payment ”), to the extent the payment of such Redemption Payment would be a breach of any covenant or obligation owed by the Corporation to any of its secured creditors or is otherwise prohibited by applicable law.

(e)     Interest . Each Redemption Payment shall accrue interest from the date of the applicable Redemption Notice or Other Redemption Notice until the date such Redemption Payment is paid at an annual interest rate equal to the annual interest rate calculated by determining the yield on a 5-year U.S. treasury note on the date of the applicable Redemption Notice or Other Redemption Notice, plus two percent (2%) (the “ Base Interest Rate ”). Upon the written request of Holder, the Corporation shall within two (2) Business Days confirm orally and in writing or by electronic mail to Holder the Base Interest Rate applicable to each Redemption Payment. In the event that any Redemption Payment is not paid when due pursuant to Section 5(b) or Section 5(c) (including by reason of Section 5(d)), the applicable Redemption Payment shall accrue, in addition to the Base Interest Rate, interest from the applicable Quarterly Redemption Payment Date or Other Redemption Payment Date until the date such Redemption Payment is paid at an annual interest rate equal to two percent (2%).

6.     Voting Rights . Holders of Preferred Shares shall have no voting rights.

7.     Liquidation, Dissolution, Winding-Up . In the event of a Liquidation Event, Holder shall be entitled to receive in cash out of the assets of the Corporation, whether from capital or from earnings available for distribution to its stockholders, after any amount that is required to be paid to the Senior Stock, the amount per share Holder would receive if Holder converted all of the Preferred Shares held by Holder into Common Stock immediately prior to the date of such payment.

8.     Distribution of Assets . If the Corporation shall declare or make any dividend or other distributions of its assets (or rights to acquire its assets) to any or all holders of shares of Common Stock, by way of return of capital or otherwise (including without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off,

 

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reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (the “ Distributions ”), then Holder, as a holder of Preferred Shares, will be entitled to such Distributions as if Holder had held the number of shares of Common Stock acquirable upon complete conversion of the Preferred Shares (without taking into account any limitations or restrictions on the convertibility of the Preferred Shares) immediately prior to the date on which a record is taken for such Distribution or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for such Distributions ( provided , however , that to the extent that Holder’s right to participate in any such Distribution would result in Holder and the other Attribution Parties exceeding the Maximum Percentage or the Exchange Cap having been exceeded, then Holder shall not be entitled to participate in such Distribution (other than a Distribution of cash) to such extent (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Distribution (and beneficial ownership) to such extent) and the portion of such Distribution shall be held in abeyance for Holder until such time or times as its right thereto would not result in Holder and the other Attribution Parties exceeding the Maximum Percentage or the Exchange Cap having been exceeded, as applicable, at which time or times, if any, Holder shall be granted such rights (and any rights under this Section 8 on such initial rights or on any subsequent such rights to be held similarly in abeyance) to the same extent as if there had been no such limitation).

9.     Reissuance of Preferred Share Certificates and Book Entries .

(a)     Transferability . The Preferred Shares shall not be transferable except by the Corporation or an Affiliate of the Corporation.

(b)     Lost, Stolen or Mutilated Preferred Share Certificate . Upon receipt by the Corporation of evidence reasonably satisfactory to the Corporation of the loss, theft, destruction or mutilation of a Preferred Share Certificate, and, in the case of loss, theft or destruction, of any indemnification undertaking by Holder to the Corporation in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of such Preferred Share Certificate, the Corporation shall execute and deliver to Holder a new Preferred Share Certificate (in accordance with Section 9(c)) representing the applicable outstanding number of Preferred Shares.

(c)     Issuance of New Preferred Share Certificate or Book-Entry . Whenever the Corporation is required to issue a new Preferred Share Certificate or a new Book-Entry pursuant to the terms of this Certificate of Designations, such new Preferred Share Certificate or new Book-Entry (i) shall represent, as indicated on the face of such Preferred Share Certificate or in such Book-Entry, as applicable, the number of Preferred Shares remaining outstanding which, when added to the number of Preferred Shares represented by the other new Preferred Share Certificates or other new Book-Entry, as applicable, issued in connection with such issuance, does not exceed the number of Preferred Shares remaining outstanding under the original Preferred Share Certificate or original Book-Entry, as applicable, immediately prior to such issuance of new Preferred Share Certificate or new Book-Entry, as applicable, and (ii) shall have an issuance date, as indicated on the face of such new Preferred Share Certificate or in such new Book-Entry, as applicable, which is the same as the issuance date of the original Preferred Share Certificate or in such original Book-Entry, as applicable.

 

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10.     Construction; Headings . This Certificate of Designations shall be deemed to be jointly drafted by the Corporation and Holder and shall not be construed against any such Person as the drafter hereof. The headings of this Certificate of Designations are for convenience of reference and shall not form part of, or affect the interpretation of, this Certificate of Designations. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Certificate of Designations instead of just the provision in which they are found. Unless expressly indicated otherwise, all section references are to sections of this Certificate of Designations.

11.     Notices . The Corporation shall provide Holder with prompt written notice of all actions taken pursuant to the terms of this Certificate of Designations, including in reasonable detail a description of such action and the reason therefor. Any notices, consents, waivers or other communications required or permitted to be given under the terms hereof must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party) or by electronic mail; or (iii) one Business Day after deposit with an overnight courier service, in each case properly addressed to the party to receive the same, as follows:

(i)     if to the Corporation, to:

WisdomTree Investments, Inc.

245 Park Avenue, 35th Floor

New York, NY 10167

Attention: Chief Legal Officer or General Counsel

Email: legalnotice@wisdomtree.com

Facsimile: (917) 267-3851

With a copy to:

Goodwin Procter LLP

100 Northern Avenue

Boston, Massachusetts 02210

Attention: Jocelyn Arel

Email: jarel@goodwinlaw.com

Facsimile: (617) 321-4344

Goodwin Procter LLP

901 New York Avenue, N.W.

Washington, D.C. 20001

Attention: James A. Hutchinson

Email: JHutchinson@goodwinlaw.com

Facsimile: (202) 346-4444

 

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(ii) if to Holder in accordance with the address, facsimile number and/or e-mail address of Holder set forth on the books and records of the Corporation; or to such other address, facsimile number and/or e-mail address and/or to the attention of such Person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change.

12.     Governing Law . This Certificate of Designations shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Certificate of Designations shall be governed by, the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Each of the Corporation and Holder hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the city of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. THE CORPORATION AND HOLDER HEREBY IRREVOCABLY WAIVE ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS CERTIFICATE OF DESIGNATIONS OR ANY TRANSACTION CONTEMPLATED HEREBY.

13.     Severability . If any provision of this Certificate of Designations is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Certificate of Designations so long as this Certificate of Designations as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).

14.     Certain Defined Terms . For purposes of this Certificate of Designations, the following terms shall have the following meanings:

(a)    “ Affiliate ” or “ Affiliated ” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly or indirectly either to vote ten percent (10%) or more of the stock having ordinary voting power for the election of directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

 

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(b)    “ Attribution Parties ” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the Initial Issuance Date, directly or indirectly managed or advised by Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of Holder, or any of the foregoing, in each case other than the Excluded Parties, (iii) any Person acting or who could be deemed to be acting as a Group together with Holder or any of the foregoing, and (iv) any other Persons whose beneficial ownership of the Corporation’s Common Stock would or could be aggregated with Holder’s and the other Attribution Parties for purposes of Section 13(d) of the Exchange Act. For clarity, the purpose of the foregoing is to subject collectively Holder and all other Attribution Parties to the Maximum Percentage .

(c)    “ Book-Entry ” means each entry on the Register evidencing one or more Preferred Shares held by Holder in lieu of a Preferred Share Certificate issuable hereunder.

(d)    “ Business Day ” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.

(e)    “ Change of Control ” means any Fundamental Transaction other than (i) any reorganization, recapitalization or reclassification of the Common Stock in which holders of the Corporation’s voting power immediately prior to such reorganization, recapitalization or reclassification continue after such reorganization, recapitalization or reclassification to hold publicly traded securities and, directly or indirectly, are the holders of more than 50% of the voting power of the surviving entity (or entities with the authority or voting power to elect the members of the board of directors (or their equivalent if other than a corporation) of such entity or entities) after such reorganization, recapitalization or reclassification, (ii) pursuant to a migratory merger effected solely for the purpose of changing the jurisdiction of incorporation of the Corporation or (iii) any Continuing Transaction.

(f)    “ Common Stock ” means (i) the Corporation’s shares of common stock, $0.01 par value per share, and (ii) any capital stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.

(g)    “ Common Stock Equivalents ” means any options, warrants or other securities or rights convertible into or exercisable or exchangeable for, whether directly or following conversion into or exercise or exchange for other options, warrants or other securities or rights, shares of Common Stock.

 

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(h)    “ Continuing Transaction ” means any event, transaction or series of related transactions or events which result in: (i) the Current CEO continuing to serve as the Chief Executive Officer of the combined or resulting entity immediately following the consummation of such event, transaction or series of related transactions or events; or (ii) a majority of the Board of Directors of the Corporation or the combined or resulting entity immediately following the consummation of such event, transaction or series of related transactions or events being comprised of Current Directors. By way of example, for purposes of clause (ii) of this definition of Continuing Transaction, if the Board as of the date of this Certificate of Designations is comprised of an even number of directors, then less than 50% of the Current Directors must no longer be serving as members of the Board before any event, transaction or series of related transactions or events could not be deemed to be a Continuing Transaction.

(i)    “ Convertible Securities ” means any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock.

(j)    “ Current CEO ” means the Chief Executive Officer of the Company as of November 12, 2017.

(k)    “ Current Director ” means each member of the Board as of the date of this Certificate of Designations and the first individual elected and qualified to fill the Class III Board seat that is vacant as of the date of this Certificate of Designations.

(l)    “ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

(m)    “ Excluded Exempt Offering Shares ” means, as of any Conversion Date, any Exempt Offering Shares that have not been issued by the Corporation by the Triggering Event Date; provided , however , that Excluded Exempt Offering Shares shall not include any Exempt Offering Shares issued by the Corporation after the Triggering Event Date if in the reasonable opinion of the Corporation and its counsel the issuance of such Exempt Offering Shares would be deemed to be “integrated” with the offering of the Consideration Shares (as defined in the Purchase Agreement) for purposes of United States securities laws.

(n)    “ Excluded Parties ” means: (i) Financial Technology Ventures II (Q), LP and Millennium Technology Value Partners II Holdings, L.P; and (ii) any Affiliate of the Persons referred to in clause (i) other than Holder or any of its Affiliates (other than the Persons referred to in clause (i)).

(o)    “ Exempt Offering Shares ” means, as of any Conversion Date, shares of Common Stock or Common Stock Equivalents representing an aggregate of up to four million (4,000,000) shares of Common Stock, less any Excluded Exempt Offering Shares.

 

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(p)    “ Fundamental Transaction ” means (i) that the Corporation shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, (A) consolidate or merge with or into (whether or not the Corporation is the surviving corporation) another Subject Entity, or (B) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Corporation to one or more Subject Entities, or (C) make, or allow one or more Subject Entities to make, or allow the Corporation to be subject to or have its Common Stock be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of at least either (x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of shares of Common Stock such that all Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least 50% of the outstanding shares of Common Stock, or (D) consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities, individually or in the aggregate, acquire, either (x) at least 50% of the outstanding shares of Common Stock, (y) at least 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such stock purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least 50% of the outstanding shares of Common Stock, or (E) reorganize, recapitalize or reclassify its Common Stock, (ii) that the Corporation shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either (A) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock, (B) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such Subject Entities as of the date of this Certificate of Designations calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (C) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity securities of the Corporation sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other shareholders of the Corporation to surrender their shares of Common Stock without approval of the shareholders of the Corporation or (iii) directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one

 

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or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction.

(q)    “ Group ” means a “group” as that term is used in Section 13(d) of the Exchange Act and as defined in Rule 13d-5 thereunder.

(r)    “ Liquidation Event ” means, whether in a single transaction or series of transactions, the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, taken as a whole.

(s)    “ Person ” means any individual, limited liability company, partnership, firm, corporation, association, trust, unincorporated organization, government or any department or agency thereof or other entity, as well as any Group.

(t)    “ Principal Market ” means the NASDAQ Global Select Market.

(u)    “ Purchase Agreement ” means the Share Sale Agreement related to Electra Target Holdco Limited, dated as of November 13, 2017, by and among Holder, WisdomTree International Holdings Ltd and the Corporation.

(v)    “ Redemption Price ” means an amount equal to the product of: (i) the VWAP; multiplied by (ii) the Conversion Rate.

(w)    “ SEC ” means the United States Securities and Exchange Commission or the successor thereto.

(x)    “ Senior Stock ” means any class or series of capital stock of the Corporation the terms of which expressly provide that such class or series will rank senior to the Common Stock or the Preferred Shares as to dividend rights and/or as to rights on liquidation, dissolution or winding up of the Corporation (in each case, without regard to whether dividends accrue cumulatively or non-cumulatively).

(y)     “Subject Entity ” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.

(z)    “ Trading Day ” means any day on which the Nasdaq Capital Market (or any successor thereto) is open for trading of securities.

(aa)    “ Triggering Event Date ” means December 31, 2018; provided , however , that if the Completion Date occurs on or after June 15, 2018, Triggering Event Date shall mean March 31, 2019.

(bb)    “ VWAP ” means the dollar volume-weighted average price for a share of Common Stock on the Principal Market (or, if the Principal Market is not the principal

 

17


trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded) as quoted by Bloomberg, LP for the thirty (30) Trading Day period ending on: (i) the Triggering Event Date in the event of a redemption pursuant to Section 5(a); or (ii) the applicable Conversion Date in the event of a redemption pursuant to Section 5(c), subject to appropriate adjustment for any stock split, stock dividend, stock combination, recapitalization or other similar transaction during such period.

15.     Amendments . At any time when any Preferred Shares are outstanding, without the affirmative consent of the Holder, the Corporation will not amend, alter or repeal its Amended and Restated Certificate of Incorporation or this Certificate of Designations in a manner that is adverse to the rights, preferences or privileges of the Preferred Shares.

* * * * *

 

18


IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations of Series A Non-Voting Convertible Preferred Stock of WisdomTree Investments, Inc. to be signed by its President and Chief Executive Officer on this 10 th day of April, 2018.

 

WISDOMTREE INVESTMENTS, INC.

By:  

/s/ Jonathan Steinberg

 

Name: Jonathan Steinberg

Title: President and Chief Executive Officer


EXHIBIT I

CONVERSION NOTICE

Reference is made to the Certificate of Designations (the “ Certificate of Designations ”) of the Series A Non-Voting Convertible Preferred Stock, $0.01 par value per share (the “ Preferred Shares ”), of WisdomTree Investments, Inc. (the “ Corporation ”). In accordance with and pursuant to the Certificate of Designations, the undersigned hereby elects to convert the number of Preferred Shares of the Corporation, indicated below into shares of common stock, $0.01 value per share (the “ Common Stock ”), of the Corporation, as of the date specified below.

 

Date of Conversion:

   

Aggregate number of Preferred Shares to be converted

   

Please issue the Common Stock into which the applicable Preferred Shares are being converted to Holder, or for its benefit, as follows:

☐ Check here if requesting delivery as a certificate to the following name and to the following address:

 

        Issue to:    
   
   

☐ Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows:

 

        DTC Participant:    
        DTC Number:    
        Account Number:    

 

Date:                                                      ,                         
 
Name of Registered Holder

 

By:    
 

Name:

Title:

 

  Tax ID:    
  Facsimile:    

E-mail Address:


EXHIBIT II

ACKNOWLEDGMENT

The Corporation hereby acknowledges this Conversion Notice and hereby directs                          to issue the above indicated number of shares of Common Stock in accordance with the Transfer Agent Instructions dated                      , 20      from the Corporation and acknowledged and agreed to by                                  .

 

WISDOMTREE INVESTMENTS, INC.

By:    
 

Name:

Title:

Exhibit 4.1

INVESTOR RIGHTS AGREEMENT

BY AND BETWEEN

WISDOMTREE INVESTMENTS, INC.

AND

ETF SECURITIES LIMITED

AND

THE EXISTING HOLDERS

DATED AS OF APRIL 11, 2018


TABLE OF CONTENTS

 

               Page  
1.    Definitions      1  
2.    Registration Rights      10  
   2.1    Lock-Up; Approved Sales; Private Placements; Rule 144 Sales.      10  
   2.2    Filing      11  
   2.3    Requests for Underwritten Offerings.      13  
   2.4    Offering Lock-Up.      14  
   2.5    Piggyback Rights.      14  
   2.6    Obligations of the Company      16  
   2.7    Obligations of Seller      19  
   2.8    Expenses      19  
   2.9    Indemnification      19  
   2.10    SEC Reports      22  
   2.11    Termination of Registration Rights.      22  
3.    Restrictions on Beneficial Ownership      22  
   3.1    Standstill      22  
   3.2    Certain Tender Offers      24  
4.    Voting Agreement      24  
   4.1    Voting of Securities      24  
   4.2    Termination of Voting Obligations      24  
5.    Company Covenants      24  
   5.1    Nasdaq Approval.      24  
   5.2    Company Information      25  
   5.3    Senior Indebtedness      25  
6.    Miscellaneous      25  
   6.1    Governing Law; Submission to Jurisdiction      25  
   6.2    Waiver      26  
   6.3    Notices      26  
   6.4    Entire Agreement      26  
   6.5    Amendments      26  
   6.6    Headings; Nouns and Pronouns; Section References      26  
   6.7    Severability      26  
   6.8    Assignment      27  
   6.9    Successors and Assigns      27  
   6.10    Counterparts      27  
   6.11    Third Party Beneficiaries      27  
   6.12    No Strict Construction      27  
   6.13    Remedies      27  
   6.14    Specific Performance      27  
   6.15    No Conflicting Agreements      28  

 

i


Exhibit A – Existing Holders

Exhibit B – Selling Stockholder Questionnaire

Exhibit C – Notices

 

ii


INVESTOR RIGHTS AGREEMENT

THIS INVESTOR RIGHTS AGREEMENT (this “ Agreement ”) is made as of April 11, 2018, by and among ETF Securities Limited (“ Seller ”), incorporated in Jersey with registered number 88370 and whose registered office is at Ordnance House, 31 Pier Road, St. Helier, Jersey JE4 8PW, WisdomTree Investments, Inc. (the “ Company ”), a Delaware corporation with its principal place of business at 245 Park Avenue, 35th Floor, New York, New York 10167, and, solely for purposes of Section 2.2(h), the Persons listed on Exhibit A hereto (the “ Existing Holders ”).

WHEREAS, the Share Sale Agreement Related to Electra Target Holdco Limited, dated as of November 13, 2017, by and among the Seller, WisdomTree International Holdings Ltd and the Company (the “ Purchase Agreement ”) provides for the issuance by the Company to the Seller of a number of shares of the Company’s common stock, par value $.01 per share (the “ Common Stock ”) equal to the Common Consideration Shares (as defined in the Purchase Agreement) and a number of shares of the Company’s Series A Non-Voting Convertible Preferred Stock, par value $.01 per share equal to the Preferred Consideration Shares] (as defined in the Purchase Agreement) (the Common Consideration Shares and the Preferred Consideration Shares, collectively, the “ Consideration Shares ”); and

WHEREAS, as a condition to consummating the transactions contemplated by the Purchase Agreement, the Seller and the Company have agreed upon certain rights and restrictions as set forth herein with respect to the Consideration Shares and other securities of the Company beneficially owned by the Seller and its Affiliates, and it is a condition to the closing under the Purchase Agreement that this Agreement be executed and delivered by the Seller and the Company.

WHEREAS, the Existing Registration Rights Agreement may be amended, and the observance of any term of the Existing Registration Rights Agreement may be waived, with (and only with) the written consent of the Company and the Persons holding a majority of the then outstanding Registrable Securities (as defined in the Existing Registration Rights Agreement).

WHEREAS, the Existing Holders hold a majority of the outstanding Registrable Securities (as defined in the Existing Registration Rights Agreement).

NOW, THEREFORE, in consideration of the premises and mutual agreements hereinafter set forth, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.     Definitions . As used in this Agreement, the following terms shall have the following meanings:

(a)    “ Acquisition Proposal ” shall have the meaning set forth in Section 3.1(c).

(b)    “ Affiliate ” or “ Affiliated ” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control


with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly or indirectly either to vote ten (10%) or more of the stock having ordinary voting power for the election of directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

(c)    “ Agreement ” shall have the meaning set forth in the Preamble to this Agreement, including all Exhibits attached hereto.

(d)    “ Alternative Shelf Registration Statement ” shall have the meaning set forth in Section 2.2(c).

(e)    “ Approved Sale ” means a sale of Marketable Shares by the Seller pursuant to a Block Trade, an Underwritten Shelf Takedown, a Company Piggyback Offering or an Other Holder Piggyback Offering.

(f)    “ Automatic Filing Request ” shall have the meaning set forth in Section 2.2(a).

(g)    “ Automatic Shelf Filing Date ” shall have the meaning set forth in Section 2.1(a)(i).

(h)    “ Automatic Shelf Registration Statement ” means an “automatic shelf registration statement” as defined in Rule 405 promulgated under the Securities Act.

(i)    “ beneficial owner ,” “ beneficially owns ,” “ beneficial ownership ” and terms of similar import used in this Agreement shall, with respect to a Person, have the meaning set forth in Rule 13d-3 under the Exchange Act (i) assuming the full conversion into, and exercise and exchange for, shares of Common Stock of all Common Stock Equivalents beneficially owned by such Person and (ii) determined without regard for the number of days in which such Person has the right to acquire such beneficial ownership.

(j)    “ Block Trade ” means any non-marketed Underwritten Offering taking the form of a bought deal or block sale to a financial institution.

(k)    “ Block Trade Request ” shall have the meaning set forth in Section 2.3(a).

(l)    “ Business Day ” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.

(m)    “ Certificate of Designations ” means the Certificate of Designations of Series A Non-Voting Convertible Preferred Stock of the Company.

(n)    “ Change of Control ” means any Fundamental Transaction other than (i) any reorganization, recapitalization or reclassification of the Common Stock in which holders of the Company’s voting power immediately prior to such reorganization,

 

2


recapitalization or reclassification continue after such reorganization, recapitalization or reclassification to hold publicly traded securities and, directly or indirectly, are the holders of more than 50% of the voting power of the surviving entity (or entities with the authority or voting power to elect the members of the board of directors (or their equivalent if other than a corporation) of such entity or entities) after such reorganization, recapitalization or reclassification, (ii) pursuant to a migratory merger effected solely for the purpose of changing the jurisdiction of incorporation of the Company or (iii) any Continuing Transaction.

(o)    “ Change of Control Meeting ” means any meeting of the stockholders of the Company, however called, and any action by written consent of the stockholders of the Company, in each case, in respect of which the stockholders of the Company are asked to approve any Change of Control.

(p)    “ Completion Date ” shall have the meaning set forth in the Purchase Agreement.

(q)    “ Common Stock ” shall have the meaning set forth in the Preamble to this Agreement.

(r)    “ Common Stock Equivalents ” means any options, warrants or other securities or rights convertible into or exercisable or exchangeable for, whether directly or following conversion into or exercise or exchange for other options, warrants or other securities or rights, shares of Common Stock.

(s)    “ Company ” shall have the meaning set forth in the Preamble to this Agreement.

(t)    “ Company Piggyback Offering ” shall have the meaning set forth in Section 2.5(a).

(u)    “ Consideration Shares ” shall have the meaning set forth in the Recitals.

(v)    “ Continuing Transaction ” means any event, transaction or series of related transactions or events which result in: (i) the Current CEO continuing to serve as the Chief Executive Officer of the combined or resulting entity immediately following the consummation of such event, transaction or series of related transactions or events; or (ii) a majority of the Board of Directors of the Company or the combined or resulting entity immediately following the consummation of such event, transaction or series of related transactions or events being comprised of Current Directors. By way of example, for purposes of clause (ii) of this definition of Continuing Transaction, if the Company’s Board of Directors as of the date of this Agreement is comprised of an even number of directors, then less than 50% of the Current Directors must no longer be serving as members of the Company’s Board of Directors before any event, transaction or series of related transactions or events could not be deemed to be a Continuing Transaction.

 

3


(w)    “ Corporate Change ” means any event, transaction or series of related transactions or events which would result in (i) the Current CEO not continuing to serve as the Chief Executive Officer of the combined or resulting entity immediately following the consummation of such event, transaction or series of related transactions or events; or (ii) a majority of the Board of Directors of the Company or the governing body of the combined or resulting entity following the consummation of such event, transaction or series of related transactions or events not being comprised of Current Directors. By way of example, for purposes of clause (ii) of this definition of Corporate Change, if the Company’s Board of Directors as of the date of this Agreement is comprised of an even number of directors, then less than 50% of the Current Directors must no longer be serving as members of the Company’s Board of Directors before a Corporate Change could be deemed to have occurred.

(x)    “ Current CEO ” means the Chief Executive Officer of the Company as of November 12, 2017.

(y)    “ Current Director ” means each member of the Company’s Board of Directors as of the date of this Agreement and the first individual elected and qualified to fill the Class III Board seat that is vacant as of the date of this Agreement.

(z)    “ Determination Date ” shall have the meaning set forth in Section 2.2(b).

(aa)    “ Disposition ” or “ Dispose of ” means any (i) distribution, transfer or other disposition, directly or indirectly, to shareholders, partners, limited partners of Seller or any to other Person of any shares of Common Stock, or any Common Stock Equivalents, (ii) pledge, sale, contract to sell, sale of any option or contract to purchase, purchase of any option or contract to sell, grant of any option, right or warrant for the sale of, or other disposition of or transfer of any shares of Common Stock, or any Common Stock Equivalents, including, without limitation, any “short sale” or similar arrangement, or (iii) swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of shares of Common Stock, whether any such swap or transaction is to be settled by delivery of securities, in cash or otherwise.

(bb)    “ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

(cc)    “ Excluded Parties ” means: (i) Financial Technology Ventures II (Q), LP and Millennium Technology Value Partners II Holdings, L.P; and (ii) any Affiliate of the Persons referred to in clause (i) other than Seller or any of its Affiliates (other than the Persons referred to in clause (i)).

(dd)    “ Exempt Offering ” means an offering by the Company of Common Stock or Common Stock Equivalents representing an aggregate of up to four million (4,000,000) shares of Common Stock (the “ Exempt Offering Shares ”) prior to the Exempt Offering Date, regardless of whether such sale is consummated as: (A) a public offering registered under the Securities Act; or (B) a private placement followed by the resale registration of the Exempt Offering Shares under the Securities Act.

 

4


(ee)    “ Exempt Offering Date ” means December 31, 2018; provided , however , that if the Completion Date occurs on or after June 15, 2018, Exempt Offering Date shall mean March 31, 2019.

(ff)    “ Existing Debt ” shall have the meaning set forth in Section 5.3.

(gg)    “ Existing Registration Rights Agreement ” shall mean that certain Third Amended and Restated Registration Rights Agreement, dated October 15, 2009, among the Company and certain other parties thereto.

(hh)    “ Fundamental Transaction ” means (i) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, (A) consolidate or merge with or into (whether or not the Company is the surviving corporation) another Subject Entity, or (B) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company to one or more Subject Entities, or (C) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its Common Stock be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of at least either (x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of shares of Common Stock such that all Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least 50% of the outstanding shares of Common Stock, or (D) consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities, individually or in the aggregate, acquire, either (x) at least 50% of the outstanding shares of Common Stock, (y) at least 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such stock purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least 50% of the outstanding shares of Common Stock, or (E) reorganize, recapitalize or reclassify its Common Stock, (ii) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either (A) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common

 

5


Stock, (B) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such Subject Entities as of the Completion Date calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (C) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other shareholders of the Company to surrender their shares of Common Stock without approval of the shareholders of the Company or (iii) directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction.

(ii)    “ Governmental Authority ” means any court, agency, authority, department, regulatory body or other instrumentality of any government or country or of any national, federal, state, provincial, regional, county, city or other political subdivision of any such government or country or any supranational organization of which any such country is a member.

(jj)    “ Group ” means a “group” as that term is used in Section 13(d) of the Exchange Act and as defined in Rule 13d-5 thereunder.

(kk)    “ Indebtedness ” means, without duplication: (a) all indebtedness for borrowed money; (b) all obligations evidenced by notes, bonds, debentures or similar instruments; (c) all obligations secured by any mortgage or lien on property owned or acquired subject to such mortgage or lien, whether or not the liability secured thereby shall have been assumed; and (d) any guarantees of the types of obligations described in foregoing clauses (a) through (c).

(ll)    “ Irrevocable Proxy ” shall have the meaning set forth in Section 4.1.

(mm)    “ Law ” or “ Laws ” means all laws, statutes, rules, regulations, orders, judgments, injunctions and/or ordinances of any Governmental Authority.

(nn)    “ Marketable Shares ” means the: (i) the Common Consideration Shares; (ii) the shares of Common Stock issuable upon conversion of the Preferred Consideration Shares, and shall be adjusted for: (A) any stock split, stock dividend, share exchange, merger, consolidation or similar recapitalization; and (B) any Common Stock issued as (or issuable upon the exercise of any warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange or in replacement of, the Marketable Shares.

(oo)    “ Modified Clause ” shall have the meaning set forth in Section 6.7.

 

6


(pp)    “ Nasdaq Approval ” shall have the meaning set forth in Section 5.1.

(qq)    “ Next Annual Meeting ” means the Company’s first (1 st ) regularly scheduled annual meeting of stockholders occurring following the Completion Date (as such meeting may be adjourned or postponed).

(rr)    “ Other Holder ” means any Person having rights to participate in a registration of the Company’s securities, including pursuant to the Existing Registration Rights Agreement.

(ss)    “ Other Holder Piggyback Offering ” shall have the meaning set forth in Section 2.5(c).

(tt)    “ Other Registrable Securities ” shall have the meaning set forth in Section 2.5(a).

(uu)    “ Person ” means any individual, limited liability company, partnership, firm, corporation, association, trust, unincorporated organization, government or any department or agency thereof or other entity, as well as any Group.

(vv)    “ Private Placement ” means the Disposition by Seller of any Registrable Securities exempt from the registration requirements of the Securities Act.

(ww)    “ Private Placement Request ” shall have the meaning set forth in Section 2.2(d).

(xx)    “ Prospectus ” means the prospectus forming a part of any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all amendments (including post-effective amendments) and including all material incorporated by reference or explicitly deemed to be incorporated by reference in such prospectus.

(yy)    “ Purchase Agreement ” shall have the meaning set forth in the Preamble to this Agreement, and shall include all Exhibits attached thereto.

(zz)    “ registers ,” “ registered ,” and “ registration ” refer to a registration effected by preparing and filing a registration statement or similar document in compliance with the Securities Act, and the declaration or ordering of effectiveness of such Registration Statement or document by the SEC.

(aaa)    “ Registrable Securities ” means: (i) the Common Consideration Shares; (ii) the shares of Common Stock issuable upon conversion of the Preferred Consideration Shares; and (iii) all shares of Common Stock issued to Seller with respect to the securities referred to in clauses (i) and (ii) upon: (A) any stock split, stock dividend, share exchange, merger, consolidation or similar recapitalization; and (B) as (or issuable upon the exercise of any

 

7


warrant, right or other security that is issued as) a dividend or other distribution with respect to, or in exchange or in replacement thereof. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (x) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; or (y) such securities shall have been otherwise properly transferred in accordance with this Agreement and the Certificate of Designations, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration under the Securities Act.

(bbb)    “ Registration Expenses ” means all expenses incurred by the Company in connection with any Underwritten Offering, including, without limitation, all registration and filing fees, fees and expenses of compliance with securities or blue sky Laws (including reasonable fees and disbursements of counsel in connection with blue sky qualifications of any Registrable Securities), expenses of printing (i) certificates for any Registrable Securities in a form eligible for deposit with the Depository Trust Company or (ii) Prospectuses if the printing of Prospectuses is requested by Seller, messenger and delivery expenses, fees and disbursements of counsel for the Company and its independent certified public accountants (including the expenses of any management review, cold comfort letters or any special audits required by or incident to such performance and compliance), Securities Act liability insurance (if the Company elects to obtain such insurance), the reasonable fees and expenses of any special experts retained by the Company in connection with such registration, fees and expenses of other Persons retained by the Company and the reasonable fees and expenses of one (1) counsel for Seller; provided , however , that Registration Expenses shall not include any Selling Expenses. In addition, the Company will pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Common Stock to be registered on each securities exchange, if any, on which equity securities issued by the Company are then listed or the quotation of such securities on any national securities exchange on which equity securities issued by the Company are then quoted.

(ccc)    “ Registration Rights Term ” shall have the meaning set forth in Section 2.2(a).

(ddd)    “ Registration Statement ” means any registration statement of the Company under the Securities Act that covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the related Prospectus, all amendments and supplements to such registration statement (including post-effective amendments), and all exhibits and all materials incorporated by reference or explicitly deemed to be incorporated by reference in such Registration Statement.

(eee)    “ Rule 144 Sale ” means the Disposition by Seller of any Registrable Securities in compliance with Rule 144 under the Securities Act.

 

8


(fff)    “ SEC ” means the United States Securities and Exchange Commission.

(ggg)    “ Securities Act ” means the United States Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

(hhh)    “ Seller ” shall have the meaning set forth in the Preamble to this Agreement.

(iii)    “ Seller Underwriter ” means one (1) securities dealer chosen by Seller which purchases any Registrable Securities as principal and not as part of such dealer’s market-making activities.

(jjj)    “ Seller Underwriter Notice ” means, with respect to each Block Trade and Underwritten Shelf Takedown, as applicable, a written notice from the Seller to the Company specifying the identity and contact information of the applicable Seller Underwriter or informing the Company that Seller has elected not to select a Seller Underwriter in connection with such Block Trade or Underwritten Shelf Takedown.

(kkk)    “ Selling Expenses ” means all underwriting discounts, selling commissions and all transfer, stamp, issuance and similar taxes, costs and expenses that may be payable with respect to the sale of Registrable Securities pursuant to this Agreement or otherwise.

(lll)    “ Shares of Then Outstanding Common Stock ” means, at any time, the issued and outstanding shares of Common Stock at such time, as well as all capital stock issued and outstanding as a result of any stock split, stock dividend, or reclassification of Common Stock distributable, on a pro rata basis, to all holders of Common Stock.

(mmm)    “ Shelf Filing Request ” shall have the meaning set forth in Section 2.2(c).

(nnn)    “ Shelf Registration ” means a registration of securities pursuant to a registration statement filed with the SEC in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).

(ooo)    “ Shelf Registration Statement ” means a registration statement to permit the public resale of the Registrable Securities.

(ppp)    “ Standstill Parties ” shall have the meaning set forth in Section 3.1.

(qqq)    “ Standstill Term ” means the period from and after the Completion Date until the earliest to occur of: (i) date on which the beneficial ownership of the Standstill Parties collectively no longer represents at least five percent (5%) of the Shares of Then Outstanding Common Stock; (ii) the three (3) year anniversary of the Completion Date; (iii) the date of the consummation of a Change of Control; and (iv) a Corporate Change.

(rrr)    “ Subject Entity ” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.

 

9


(sss)    “ Subsidiary ” of the Company means any corporation, association, limited liability company, partnership, joint venture or other business entity of which more than fifty percent (50%) of the voting stock or other equity interests, that is owned or controlled directly or indirectly by the Company, or one or more of the Subsidiaries of the Company, or a combination thereof.

(ttt)    “ Substitute Shelf Registration Statement ” shall have the meaning set forth in Section 2.2(b).

(uuu)    “ Takedown Request ” shall have the meaning set forth in Section 2.3(b).

(vvv)    “ Third Party ” means any Person other than the Seller, the Company or any of their respective Affiliates.

(www)    “ Transaction Debt ” shall have the meaning set forth in Section 5.3.

(xxx)    “ Underwriter ” means a securities dealer or dealers chosen by the Company which purchases any Registrable Securities as principal and not as part of such dealer’s market-making activities.

(yyy)    “ Underwritten Offering ” means a registration in which Registrable Securities are sold to an Underwriter or Seller Underwriter for reoffering pursuant to a “takedown” of an Automatic Shelf Registration Statement, Substitute Shelf Registration Statement or Alternative Shelf Registration Statement, as applicable.

(zzz)    “ Underwritten Shelf Takedown ” shall have the meaning set forth in Section 2.3(b).

(aaaa)    “ Violation ” shall have the meaning set forth in Section 2.9(a).

(bbbb)    “ Well-Known Seasoned Issuer ” means a “well-known seasoned issuer” as defined in Rule 405 promulgated under the Securities Act and which (a) is a “well-known seasoned issuer” under paragraph (1)(i)(A) of such definition or (b) is a “well-known seasoned issuer” under paragraph (1)(i)(B) of such definition and is also eligible to register a primary offering of its securities relying on General Instruction I.B.1 of Form S-3 or Form F-3 under the Securities Act.

2.     Registration Rights .

2.1     Lock-Up; Approved Sales; Private Placements; Rule 144 Sales .

 

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(a)    From and after the Completion Date and until the date that is Four Hundred and Fifty One (451) days following the Completion Date, without the prior written approval of the Company, the Seller shall not Dispose of any Shares of Then Outstanding Common Stock and/or Common Stock Equivalents; provided , however , that the foregoing shall not prohibit the Seller from Disposing up to: (i) One-Third (1/3 rd ) of the Marketable Shares held by the Seller on the Completion Date from and after the date that is Ninety One (91) days following the Completion Date (the “ Automatic Shelf Filing Date ”); and (ii) Two-Thirds (2/3 rds ) of the Marketable Shares held by the Seller on the Completion Date from and after the date that is Two Hundred Seventy One (271) days following the Completion Date.

(b)    Notwithstanding anything in this Agreement to the contrary, the Seller shall not without the prior written approval of the Company, Dispose of any Shares of Then Outstanding Common Stock and/or Common Stock Equivalents at any time except pursuant to an Approved Sale or Private Placement, in each case, in accordance with Section 2 of this Agreement.

(c)    Notwithstanding the foregoing, Seller may only Dispose of any Registrable Securities pursuant to a Rule 144 Sale if, and to the extent, the Company materially breaches or fails to perform any of its obligations under Section 2.2(a)(i), Section 2.2(a)(ii), Section 2.2(b), Section 2.2(c)(i), Section 2.2(c)(ii), Section 2.2(c)(iii), Section 2.2(d), Section 2.2(f), Section 2.3(a), Section 2.3(b), Section 2.5(a), Section 2.5(c) or Section 2.5(e) and the Company has not cured such breach within thirty (30) days after the Seller has given the Company written notice of such breach and of Seller’s intention to Dispose of Registrable Securities pursuant to a Rule 144 Sale.

2.2     Filing

(a)     Automatic Shelf Registration Statement . If, at any time from and after the Automatic Shelf Filing Date until the fifth (5 th ) anniversary of the Completion Date (the “ Registration Rights Term ”) the Company is a Well-Known Seasoned Issuer, then the Seller may request in writing that the Company prepare and file an Automatic Shelf Registration Statement to permit the public resale of all of the Registrable Securities subject to and in accordance with the terms of this Agreement (an “ Automatic Filing Request ”). Subject to Section 2.7, the Company shall: (i) use its commercially reasonable efforts to prepare and file such Automatic Shelf Registration Statement within ten (10) Business Days of the date of receipt of the Automatic Filing Request; and (ii) cause such Automatic Shelf Registration Statement to remain effective thereafter until the earlier to occur of: (A) the expiration of the Registration Rights Term; (B) such time as there are no longer any Registrable Securities.

(b)     Determination Date . If at any time after the filing of an Automatic Shelf Registration Statement by the Company, the Company is no longer a Well-Known Seasoned Issuer (the “ Determination Date ”), then within ten (10) Business Days after such Determination Date, the Company shall: (i) give written notice thereof to the Seller; and (ii) subject to Section 2.7, file a Registration Statement on an appropriate form (or a post-effective amendment converting the Automatic Shelf Registration Statement to an appropriate form) covering all of the Registrable Securities subject to and in accordance with the terms of this

 

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Agreement (a “ Substitute Shelf Registration Statement ”). Subject to Section 2.7, the Company shall use commercially reasonable efforts to have such Substitute Shelf Registration Statement declared effective as promptly as practicable (but in no event more than thirty (30) days) after the date the Automatic Shelf Registration Statement is no longer useable by the Holders to sell their Registrable Securities.

(c)     Alternative Shelf Registration Statement . If at any time during the Registration Rights Term the Company is not a Well-Known Seasoned Issuer, then the Seller may request in writing (a “ Shelf Filing Request ”) that the Company prepare and file a Shelf Registration Statement on Form S-3 to permit the public resale of all of the Registrable Securities subject to and in accordance with the terms of this Agreement (an “ Alternative Shelf Registration Statement ”). The Company shall, subject to Section 2.7: (i) use its commercially reasonable efforts to prepare and file such Alternative Shelf Registration Statement within fifteen (15) Business Days of the date of the applicable Shelf Filing Request; (ii) use commercially reasonable efforts to cause such Alternative Shelf Registration Statement to be declared effective under the Securities Act as promptly as practicable, but in no event more than two (2) Business Days after the date that is thirty (30) days following the filing thereof (or one hundred and twenty (120) days following the filing thereof if the SEC notifies the Company that it will “review” the Alternative Shelf Registration Statement); and (iii) shall use commercially reasonable efforts to cause such Alternative Shelf Registration Statement to remain effective thereafter until the earlier to occur of: (A) the expiration of the Registration Rights Term; or (B) such time as there are no longer any Registrable Securities.

(d)     Private Placement . From and after the Completion Date, the Seller may request in writing (a “ Private Placement Request ”) that the Company approve a Private Placement (such approval to be in the Company’s sole discretion acting in good faith). The Company shall use its commercially reasonable efforts to determine whether to approve such Private Placement within ten (10) Business Days of the date of such Private Placement Request.

(e)     Obligation to Suspend Distribution . Upon receipt of any written notice from the Company of the happening of: (i) any request by the SEC for any amendment or supplement to any Automatic Shelf Registration Statement, Substitute Shelf Registration Statement, Alternative Shelf Registration Statement, Block Trade, Underwritten Shelf Takedown Company Piggyback Offering, Other Holder Piggyback Offering or Private Placement, as applicable, or any Prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such Prospectus; or (ii) upon any suspension by the Company, pursuant to a written insider trading compliance program adopted by the Company’s Board of Directors, of the ability of all “insiders” covered by such program to transact in the Company’s securities because of the existence of material non-public information, the Company shall immediately discontinue disposition of such Registrable Securities pursuant to the Automatic Shelf Registration Statement, Substitute Shelf Registration Statement, Alternative Shelf Registration Statement, Block Trade, Underwritten Shelf Takedown Company Piggyback Offering, Other Holder Piggyback Offering or Private Placement, as applicable, covering such Registrable Securities until Seller receives the required supplemented or amended Prospectus or the restriction on the ability of “insiders” to transact in the Company’s

 

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securities is removed, as applicable, and, if so directed by the Company, Seller will deliver to the Company all copies, other than permanent file copies then in Seller’s possession, of the most recent Prospectus covering such Registrable Securities at the time of receipt of such notice.

(f)    The Company may suspend disposition of Registrable Securities pursuant to Section 2.2(e) for (i) any one suspension that may not exceed ninety (90) days and (ii) up to an aggregate of one hundred and twenty (120) days for all such suspensions during any period of twelve (12) consecutive months.

(g)     Well-Known Seasoned Issuer Status . The Company agrees to use commercially reasonable efforts to remain a Well-Known Seasoned Issuer.

(h)     Waiver of Existing Registration Rights . Each Existing Holder hereby waives any rights of all the Holders (as defined in the Existing Registration Rights Agreement) under Section 2(b)(i) of the Existing Registration Rights Agreement in respect of any Block Trade or Underwritten Shelf Takedown.

2.3     Requests for Underwritten Offerings . Subject to Section 2.1(a) and Section 2.7, from and after the Automatic Shelf Filing Date:

(a)    the Seller may request to sell all or any portion of the Registrable Securities in a Block Trade (each, a “ Block Trade Request ”); provided , that each Block Trade Request shall specify the approximate number of Registrable Securities to be sold in such Block Trade. The Company shall use commercially reasonable efforts to select an Underwriter to facilitate such Block Trade no later than three (3) Business Days after the date of such Block Trade Request and shall notify Seller of the identity and contact information of such Underwriter. As soon as reasonably practicable, but in no event later than three (3) Business Days, after the Company notifies Seller of the identity and contact information of the Underwriter engaged in connection with such Block Trade, Seller shall deliver the Seller Underwriter Notice applicable to such Block Trade Request to the Company. The Company shall not be required to effectuate more than six (6) Block Trades.

(b)    the Seller may request to sell all or any portion of its Registrable Securities in an Underwritten Offering not involving a Block Trade (each, an “ Underwritten Shelf Takedown ”) (each, a “ Takedown Request ”); provided , that the Takedown Request shall specify the approximate number of Registrable Securities to be sold pursuant to such Underwritten Shelf Takedown. The Company shall use commercially reasonable efforts to select an Underwriter to facilitate such Underwritten Shelf Takedown no later than ten (10)  Business Days after the date of such Takedown Request and shall notify Seller of the identity and contact information of such Underwriter. As soon as reasonably practicable, but in no event later than three (3) Business Days, after the Company notifies Seller of the identity and contact information of the Underwriter engaged in connection with such Underwritten Shelf Takedown, Seller shall deliver the Seller Underwriter Notice applicable to such Takedown Request to the Company. The Company shall not be obligated to effect more than six (6) Underwritten Shelf Takedowns pursuant to this Agreement and shall not be obligated to effect any Underwritten Shelf Takedown:

 

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(i)    if the Company has, within the twelve (12) month period preceding the date of the Takedown Request, already effected two (2) Underwritten Shelf Takedowns;

(ii)    if the Company has, within the one hundred eighty (180) day period preceding the date of the Takedown Request, already effected one (1) Underwritten Shelf Takedown; or

(iii)    if requested by the Underwriter or Seller Underwriter, within up to one hundred eighty (180) days after the pricing of: (A) any offering of Common Stock of the Company registered under the Securities Act, including pursuant to any Shelf Registration or Shelf Registration Statement; or (B) an Exempt Offering.

2.4     Offering Lock-Up . The Seller shall, if requested by the Company or any underwriter of Common Stock of the Company, agree not to Dispose of any Shares of Then Outstanding Common Stock and/or Common Stock Equivalents for a specified period of time, not to exceed one hundred eighty (180) days. Such agreement shall be in writing in a customary form reasonably satisfactory to the Company and the underwriter(s) in such offering. The Company may impose stop transfer instructions with respect to the Shares of Then Outstanding Common Stock and/or Common Stock Equivalents subject to the foregoing restrictions to the extent consistent with any such agreement until the end of the specified period of time.

2.5     Piggyback Rights.

(a)     Right to Piggyback on Primary Company Offerings . From and after the Automatic Shelf Filing Date, whenever the Company proposes to register any of its securities, or proposes to offer any of its Common Stock pursuant to a registration statement in an underwritten offering under the Securities Act, in each case, other than pursuant to a Shelf Registration or Shelf Registration Statement or an Exempt Offering (a “ Company Piggyback Offering ”), the Company shall give prompt written notice to the Seller and the Other Holders of its intention to effect such Company Piggyback Offering; provided , that such notice shall be given not less than twenty (20) days prior to the expected date of commencement of marketing efforts for such Company Piggyback Offering. The Company shall, subject to the provisions of Section 2.1(a), Section 2.5(b) and Section 2.7, include in such Company Piggyback Offering all Registrable Securities with respect to which the Company has received written requests for inclusion therein from the Seller and all shares of Common Stock with respect to which the Company has received written requests for inclusion therein from the Other Holders (“ Other Registrable Securities ”) within fifteen (15) days after sending the Company’s notice. Notwithstanding anything to the contrary contained herein, the Company may determine not to proceed with any Company Piggyback Offering upon written notice to the Seller and the Other Holders.

(b)     Priority on Company Piggyback Offerings . If the managing underwriters for any Company Piggyback Offering advise the Company in writing that in their reasonable opinion marketing factors require a limitation on the number of shares to be underwritten in such Company Piggyback Offering, the Company shall include in such Company

 

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Piggyback Offering the number which can be so sold in the following order of priority, which in the opinion of such underwriter would not adversely affect the success of such offering within the price range of such offering: (i) first, the securities the Company proposes to sell, (ii) second, subject to Section 2.7, the Registrable Securities permitted pursuant to Section 2.1(a) and the Other Registrable Securities, in each case, requested to be included in the Company Piggyback Offering, if the amount is less than all the Registrable Securities and the Other Registrable Securities requested to be sold, pro rata on the basis of the total number of Registrable Securities permitted to be included pursuant to Section 2.1(a) and the Other Registrable Securities, in each case, requested to be sold; provided , that in no event will such Other Registrable Securities represent less than twenty five percent (25%) of the securities of the Company to be included in such Company Piggyback Offering, and (iii) third, the other securities requested to be included in such Company Piggyback Offering.

(c)     Right to Piggyback on Other Holder Offerings . From and after the Automatic Shelf Filing Date, whenever the Other Holders request that the Company effect any registration with respect to any Common Stock, in each case, other than pursuant to a Shelf Registration or Shelf Registration Statement (an “ Other Holder Piggyback Offering ”), the Company shall give prompt written notice to the Seller of its intention to effect such Other Holder Piggyback Offering; provided , that such notice shall be given not less than twenty (20) days prior to the expected date of commencement of marketing efforts for such Other Holder Piggyback Offering. The Company shall, subject to the provisions of Section 2.1(a), Section 2.5(d) and Section 2.7 include in such Other Holder Piggyback Offering all Registrable Securities with respect to which the Company has received written requests for inclusion therein from the Seller within fifteen (15) days after sending the Company’s notice. Notwithstanding anything to the contrary contained herein, the Company may determine not to proceed with any Other Holder Piggyback Offering upon written notice to the Seller.

(d)     Priority on Other Holder Piggyback Offerings . If the managing underwriters for any Other Holder Piggyback Offering advise the Company in writing that in their reasonable opinion marketing factors require a limitation on the number of shares to be underwritten in such Other Holder Piggyback Offering, the Company shall include in such Other Holder Piggyback Offering the number which can be so sold in the following order of priority, which in the opinion of such underwriter would not adversely affect the success of such offering within the price range of such offering: (i) first, the Other Registrable Securities requested by the Other Holders to be included in such Other Holder Piggyback Offering in accordance with the Existing Registration Rights Agreement, (ii) second, subject to Section 2.7, the Registrable Securities permitted to be included pursuant to Section 2.1(a) requested to be included in such Other Holder Piggyback Offering, (iii) third, the securities the Company proposes to sell in such Other Holder Piggyback Offering, and (iv) fourth, the other securities requested to be included in such Other Holder Piggyback Offering to the extent permitted hereunder.

(e)     Selection of Underwriters . The Company will have the right to select the investment banker(s) and manager(s) for any offering, subject to the Seller’s right to appoint a Seller Underwriter in connection with each Block Trade and Underwritten Shelf Takedown, as applicable. The parties hereto agree to use commercially reasonable efforts to

 

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cause the Seller Underwriter to be entitled to the same percentage of the underwriting discount and commission or placement agent fee, as the case may be, in respect of each Underwritten Shelf Takedown or Block Trade, respectively, as the Underwriter of such Underwritten Shelf Takedown or Block Trade.

(f)     Confidentiality . Seller agrees that the fact that a notice pursuant to this Section 2.5 has been delivered shall constitute confidential information and Seller agrees not to disclose that such notice has been delivered.

2.6     Obligations of the Company . Whenever required under Section 2.2 to effect the registration of any Registrable Securities pursuant to an Underwritten Offering, the Company shall, as expeditiously as reasonably possible:

(a)    prepare and file with the SEC a Registration Statement with respect to such Registrable Securities sought to be included therein; provided , that at least three (3) Business Days prior to filing any Registration Statement or Prospectus or any amendments or supplements thereto, the Company shall furnish to the Seller, its counsel, the Underwriter and, if applicable, the Seller Underwriter copies of all such documents proposed to be filed, and Seller shall have the opportunity to comment on any information pertaining solely to Seller and its plan of distribution that is contained therein and the Company shall make the corrections reasonably requested by Seller, the Underwriter or the Seller Underwriter with respect to such information prior to filing any such Registration Statement or amendment;

(b)    prepare and file with the SEC such amendments and post-effective amendments to any Registration Statement and any Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective until the date on which all Registrable Securities covered by such Registration Statement are sold pursuant thereto, and cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement until the date on which all Registrable Securities covered by such Registration Statement are sold pursuant thereto; provided , that at least three (3) Business Days prior to filing any such amendments and post effective amendments or supplements thereto, the Company shall furnish to the Seller, its counsel, the Underwriter and, if applicable, the Seller Underwriter copies of all such documents proposed to be filed, and any Seller, Underwriter or Seller Underwriter shall have the opportunity to comment on any information pertaining solely to Seller and its plan of distribution that is contained therein and the Company shall make the corrections reasonably requested by Seller, the Underwriter or Seller Underwriter with respect to such information prior to filing any such Registration Statement or amendment;

(c)    furnish to the Seller, Underwriter and Seller Underwriter such numbers of copies of such Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus or free writing Prospectus) in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities;

 

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(d)    notify the Seller, promptly after the Company shall receive notice thereof, of the time when such Registration Statement becomes or is declared effective or when any amendment or supplement or any Prospectus forming a part of such Registration Statement has been filed;

(e)    notify the Seller promptly of any request by the SEC for the amending or supplementing of such Registration Statement or Prospectus or for additional information and promptly deliver to Seller copies of any comments received from the SEC;

(f)    notify the Seller promptly of any stop order suspending the effectiveness of such Registration Statement or Prospectus or the initiation of any proceedings for that purpose, and use all reasonable efforts to obtain the withdrawal of any such order or the termination of such proceedings;

(g)    use all reasonable efforts to register and qualify the Registrable Securities covered by such Registration Statement under such other securities or blue sky Laws of such jurisdictions as shall be reasonably requested by the Seller, use all reasonable efforts to keep each such registration or qualification effective, including through new filings, or amendments or renewals, until the date on which all Registrable Securities covered by such Registration Statement are sold pursuant thereto, and notify the Seller of Registrable Securities covered by such Registration Statement of the receipt of any written notification with respect to any suspension of any such qualification; provided , however , that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions;

(h)    enter into and perform its obligations under an underwriting agreement or placement agreement, as applicable, in usual and customary form with the Underwriter and, if applicable, Seller Underwriter of the Underwritten Shelf Takedown or Block Trade, as applicable, pursuant to which such Registrable Securities are being offered;

(i)    use all reasonable efforts to obtain: (A) at the time of any Block Trade or Underwritten Shelf Takedown pursuant to such Registration Statement, a “bring-down comfort letter,” dated as of the date of such sale, from the Company’s independent certified public accountants covering such matters of the type customarily covered by “bring-down comfort letters” as the Underwriter and Seller Underwriter may reasonably request; (B) a negative assurances letter of counsel to the Company in customary form and covering such matters of the type customarily covered by such letters as the Underwriter and Seller Underwriter may reasonably request; (C) customary certificates executed by authorized officers of the Company as the Underwriter and Seller Underwriter may reasonably request; and (D) use all reasonable efforts to obtain an opinion or opinions addressed to the Underwriter and Seller Underwriter in customary form and scope from counsel for the Company;

 

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(j)    promptly notify Seller at any time when a Prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the Prospectus included in such Registration Statement or any offering memorandum or other offering document includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and promptly prepare a supplement or amendment to such Prospectus or file any other required document so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus will not contain an untrue statement of material fact or omit to state any fact necessary to make the statements therein not misleading;

(k)    permit Seller, if in Seller’s reasonable judgment Seller could reasonably be deemed to be an underwriter with respect to the Underwritten Offering, or to be a controlling Person of the Company, to reasonably participate in the preparation of such Registration Statement and to require the insertion therein of information to the extent concerning Seller, furnished to the Company in writing, which in the reasonable judgment of Seller and its counsel should be included;

(l)    upon reasonable notice and during normal business hours, subject to the Company receiving customary confidentiality undertakings or agreements from Seller or other person obtaining access to Company records, documents, properties or other information pursuant to this Section 2.6(l), make available for inspection by a representative of Seller, the Underwriter and the Seller Underwriter and any attorneys or accountants retained by any Seller, Underwriter or the Seller Underwriter, relevant financial and other records, pertinent corporate documents and properties of the Company, and use all reasonable efforts to cause the officers, directors and employees of the Company to supply all information reasonably requested by any such representative, Underwriter, Seller Underwriter, attorneys or accountants in connection with the Registration Statement;

(m)    with respect to each of the six (6) Underwritten Shelf Takedowns, participate, to the extent requested by the Underwriter and Seller Underwriter, in efforts extending for no more than five (5) Business Days scheduled by such Underwriter and reasonably acceptable to the Company’s senior management, to sell the Registrable Securities being offered pursuant to such Underwritten Shelf Takedowns (including participating during such period in customary “roadshow” meetings);

(n)    use all reasonable efforts to comply with all applicable rules and regulations of the SEC relating to such registration and make generally available to its security holders earning statements satisfying the provisions of Section 11(a) of the Securities Act, provided that the Company will be deemed to have complied with this Section 2.6(n) with respect to such earning statements if it has satisfied the provisions of Rule 158;

(o)    if requested by the Underwriter and the Seller Underwriter, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the Underwriter and Seller Underwriter reasonably requests to be included therein, with respect to the Registrable Securities being sold by Seller, including, without limitation, the

 

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purchase price being paid therefor by the Underwriter and Seller Underwriter and with respect to any other terms of the Underwritten Offering of Registrable Securities to be sold in such offering, and promptly make all required filings of such Prospectus supplement or post-effective amendment;

(p)    cause the Registrable Securities covered by such Registration Statement to be listed on each securities exchange, if any, on which equity securities issued by the Company are then listed; and

(q)    reasonably cooperate with Seller, the Underwriter and the Seller Underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with filings required to be made with the Financial Industry Regulatory Authority, Inc., if any.

2.7     Obligations of Seller .

(a)    Notwithstanding anything in this Agreement to the contrary, it shall be a condition precedent to the right of Seller to include any Registrable Securities in an Approved Sale or to the obligation of the Company to take any other action pursuant to this Section 2 that Seller shall: (i) furnish to the Company such information regarding itself and the Registrable Securities held by it as shall be reasonably necessary to effect the registration of Seller’s Registrable Securities, including the information required in the Selling Stockholder Questionnaire attached hereto as Exhibit B ; (ii) enter into an underwriting agreement or placement agreement in customary form and provide customary representations and warranties, and customary indemnities to the applicable underwriter and the Company as provided in the applicable underwriting agreement or placement agreement; (iii) sell any Registrable Securities on the basis provided in the applicable underwriting agreement or placement agreement; and (iv) complete and execute all questionnaires, powers of attorney, indemnities and other documents reasonably required by the underwriter(s) or the Company.

(b)    The Seller shall use commercially reasonable efforts to work with the Company, the Underwriter and the Seller Underwriter prior to making any Block Trade Request or Takedown Request in order to facilitate preparation of the Registration Statement, Prospectus and other offering documentation related to the applicable Block Trade or Underwritten Shelf Takedown.

(c)    The Seller hereby acknowledges and agrees that Seller’s election to select a Seller Underwriter or not to select any Seller Underwriter set forth in each Seller Underwriter Notice shall be irrevocable.

2.8     Expenses . Except as specifically provided herein, all Registration Expenses shall be borne by the Company. All Selling Expenses incurred in connection with any registration hereunder shall be borne by the Seller.

2.9     Indemnification . In the event any Registrable Securities are included in a Registration Statement under this Agreement:

 

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(a)    The Company shall indemnify and hold harmless Seller, any Underwriter, Seller Underwriter and each Person, if any, who controls Seller, Underwriter or Seller Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and the officers, directors, owners, agents and employees of such controlling Persons, against any and all losses, claims, damages or liabilities (joint or several) to which they may become subject under any securities Laws including, without limitation, the Securities Act, the Exchange Act, or any other statute or common law of the United States or any other country or political subdivision thereof, or otherwise, including the amount paid in settlement of any litigation commenced or threatened (including any amounts paid pursuant to or in settlement of claims made under the indemnification or contribution provisions of any underwriting or similar agreement entered into by Seller in connection with any offering or sale of securities covered by this Agreement), and shall promptly reimburse them, as and when incurred, for any legal or other expenses incurred by them in connection with investigating any claims and defending any actions, insofar as any such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (each, a “ Violation ”): (i) any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference into such Registration Statement, including any preliminary Prospectus or final Prospectus contained therein or any free writing Prospectus or any amendments or supplements thereto, or in any offering memorandum or other offering document relating to the offering and sale of such securities or (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; provided , however , the Company shall not be liable in any such case for any such loss, claim, damage, liability or action to the extent that (A) it arises out of or is based upon a Violation which occurs solely in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by Seller; or (B) is caused by Seller’s disposition of Registrable Shares during any period during which Seller was obligated to discontinue any disposition of Registrable Shares pursuant to Section 2.2(d), including as a result of any stop order suspending the effectiveness of any registration statement or Prospectus with respect to Registrable Securities, of which Seller had received prior written notice from the Company.

(b)    Seller shall indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the registration statement, each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and the officers, directors, owners, agents and employees of such controlling Persons, any Underwriter, Seller Underwriter, any other Person selling securities in such registration statement and any controlling Person of any such Underwriter, Seller Underwriter or other Person, against any losses, claims, damages or liabilities (joint or several) to which any of the foregoing Persons may become subject, under liabilities (or actions in respect thereto) which arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation: (i) arises out of or is based upon a Violation which occurs solely in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by Seller; or (ii) is caused by Seller’s disposition of Registrable Shares during any period during which Seller is obligated to discontinue any disposition of Registrable Shares pursuant to Section 2.2(d), including as a result of any stop order suspending the effectiveness of

 

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any registration statement or Prospectus with respect to Registrable Securities of which Seller had received prior written notice. Seller shall reimburse, as and when incurred, any legal or other expenses reasonably incurred by any Person intended to be indemnified pursuant to this Section 2.9(b), in connection with investigating or defending any such loss, claim, damage, liability or action; provided , however , that the indemnity agreement contained in this Section 2.9(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without consent of the Seller, which consent shall not be unreasonably withheld; provided , further , that, other than with respect to Section 2.9(b)(ii), the total amount to be indemnified shall be limited to the net proceeds (after deducting the underwriting discounts and commissions) received by the Seller in the offering to which the registration statement or Prospectus relates.

(c)    Promptly after receipt by an indemnified party under this Section 2.9 of notice of the commencement of any action (including any action by a Governmental Authority), such indemnified party shall, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.9, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided , however , that an indemnified party shall have the right to retain its own counsel, with the reasonable fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the indemnified party under this Section 2.9 except to the extent that the indemnifying party would be prejudiced as a result of such failure, but the omission so to deliver written notice to the indemnifying party shall not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.9.

(d)    In order to provide for just and equitable contribution to joint liability in any case in which a claim for indemnification is made pursuant to this Section 2.9 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 2.9 provided for indemnification in such case, the Company and Seller shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in proportion to the relative fault of the Company, on the one hand, and Seller, on the other hand in connection with the statements or omissions which result in such losses, claims, damages liabilities, or expenses as well as any other relevant equitable considerations. The relative fault of the indemnifying party on the one hand and of the indemnified party on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, and by such Person’s relative intent, knowledge, access to information and opportunity to correct or prevent

 

21


such statement or omission; provided , however , that in any such case, no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; provided further , however , that in no event shall any contribution under this Section 2.9(d) on the part of Seller exceed the net proceeds (after deducting the underwriting discounts and commissions) received by Seller from the sale of Registrable Securities giving rise to such contribution obligation, except in the case of Section 2.9(b)(ii) or willful misconduct or fraud by Seller, which has been determined in a final adjudication to which Seller has no further rights of appeal.

(e)    The obligations of the Company and Seller under this Section 2.9 shall survive the completion of any offering of Registrable Securities in a registration statement under this Agreement and otherwise.

2.10     SEC Reports . With a view to making available to Seller the benefits of Rule 144 under the Securities Act and any other rule or regulation of the SEC that may at any time permit Seller to sell Registrable Securities of the Company to the public without registration, the Company agrees to at any time that it is a reporting company under Section 13 or 15(d) of the Exchange Act:

(a)    file with the SEC in a timely manner all reports and other documents required of the Company under the Exchange Act; and

(b)    furnish to Seller, so long as Seller owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has complied with the reporting requirements of the Exchange Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC (exclusive of Rule 144A) which permits the selling of any Registrable Securities without registration.

2.11     Termination of Registration Rights . Except for Section 2.9, which shall survive until the expiration of any applicable statutes of limitation, Section 2 shall terminate automatically and have no further force or effect upon the expiration of the Registration Rights Term.

3.     Restrictions on Beneficial Ownership .

3.1     Standstill . During the Standstill Term, neither the Seller nor any of its Affiliates other than the Excluded Parties (collectively, the “ Standstill Parties ”) shall (and the Seller shall cause its Standstill Parties not to), except as expressly approved or invited in writing by the Company:

(a)    directly or indirectly, acquire beneficial ownership of Shares of Then Outstanding Common Stock and/or Common Stock Equivalents, or make a tender, exchange or other offer to acquire Shares of Then Outstanding Common Stock and/or Common Stock Equivalents other than the Share Consideration;

 

22


(b)    directly or indirectly, (i) seek to have called any meeting of the stockholders of the Company, or (ii) propose or nominate for election to the Company’s Board of Directors any person whose nomination has not been approved by a majority of the Company’s Board of Directors or cause to be voted in favor of such person for election to the Company’s Board of Directors any Shares of Then Outstanding Common Stock;

(c)    directly or indirectly, encourage or support a tender, exchange or other offer or proposal by any other Person or group the consummation of which would result in a Change of Control (an “ Acquisition Proposal ”); provided , however , that from and after the filing of a Schedule 14D-9 (or successor form of Tender Offer Solicitation/Recommendation Statement under Rule 14d-9 of the Exchange Act) by the Company wherein a majority of the Company’s Board of Directors recommend that stockholders accept any such Acquisition Proposal, the Standstill Parties shall not be prohibited from taking any of the actions otherwise prohibited by this Section 3.1(c) in connection with such Acquisition Proposal for so long as the Company’s Board of Directors maintains and does not withdraw such recommendation;

(d)    directly or indirectly, solicit proxies or consents or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act) in opposition to the recommendation of a majority of the Company’s Board of Directors with respect to any matter, or seek to advise or influence any Person, with respect to voting of any Shares of Then Outstanding Common Stock of the Company;

(e)    deposit any Shares of Then Outstanding Common Stock in a voting trust or subject any Shares of Then Outstanding Common Stock to any arrangement or agreement with respect to the voting of such Shares of Then Outstanding Common Stock;

(f)    propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of the Company’s assets or businesses, or similar transaction involving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company;

(g)    act in concert with any Third Party to take any action in clauses (a) through (f) above, or form, join or in any way participate in a “partnership, limited partnership, syndicate, or other group” within the meaning of Section 13(d)(3) of the Exchange Act;

(h)    enter into discussions, negotiations, arrangements or agreements with any Person relating to the foregoing actions referred to in (a) through (g) above; or

(i)    request or propose to the Company’s Board of Directors, any member(s) thereof or any officer of the Company that the Company amend, waive, or consider the amendment or waiver of, any provisions set forth in this Section 3.1 (including this clause (i)); provided , however , that (A) nothing contained in this Section 3.1 shall prohibit the Standstill Parties from making confidential, non-public proposals to the Company for a transaction of the type described in the foregoing clause (f) that would result in a Change of Control, and (B) the mere voting in accordance with Section 4.1 hereof of any voting securities of the Company held by the Standstill Parties shall not constitute a violation of any of clauses (a) through (h) above.

 

23


3.2     Certain Tender Offers . Notwithstanding any other provision of this Section 3, this Section 3 shall not prohibit or restrict any Disposition of Marketable Shares by the Standstill Parties into (a) a tender offer by a Third Party which is supported by the Company’s Board of Directors (but only after the Company’s filing of a Schedule 14D-9, or any amendment thereto, with the SEC disclosing the recommendation of the Company’s Board of Directors in favor of such tender offer), unless Seller is then in breach of its obligations pursuant to Section 3.1 with respect to such tender offer or (b) an issuer tender offer by the Company.

4.     Voting Agreement .

4.1     Voting of Securities . From and after the Completion Date, in any vote or action by written consent of the stockholders of the Company (including, without limitation, with respect to the election of directors), the Seller shall vote or execute a written consent with respect to all voting securities of the Company as to which Seller is entitled to vote or execute a written consent in accordance with the recommendation of the Company’s Board of Directors. In furtherance of this Section 4.1, the Seller hereby irrevocably appoints the Company and any individuals designated by the Company, and each of them individually, as the attorneys, agents and proxies, with full power of substitution and re-substitution in each of them, for the Seller, and in the name, place and stead of the Seller, to vote (or cause to be voted) or, if applicable, to give consent, in such manner as set forth in this Section 4.1 with respect to all voting securities of the Company, with respect to which the Seller is or may be entitled to vote at any meeting of the Company held after the date hereof, whether annual or special and whether or not an adjourned meeting or, if applicable, any action by written consent of the stockholders of the Company, (the “ Irrevocable Proxy ”). This Irrevocable Proxy is coupled with an interest, shall be irrevocable and binding on any successor in interest of the Seller and shall not be terminated by operation of law upon the occurrence of any event. This Irrevocable Proxy shall operate to revoke and render void any prior proxy as to any securities of the Company heretofore granted by the Seller which is inconsistent herewith. Without limiting the foregoing, the Irrevocable Proxy shall be effective if, at any annual or special meeting of the stockholders of the Company and at any adjournments or postponements of any such meetings, the Seller (a) fails to appear or otherwise fails to cause all voting securities of the Company as to which Seller is entitled to vote to be counted as present for purposes of calculating a quorum, or (b) fails to vote such securities of the Company in accordance with this Section 4.1, in each case at least five (5) Business Days prior to the date of such stockholders’ meeting. The Irrevocable Proxy shall terminate upon the earlier of the expiration or termination of the voting agreement set forth in this Section 4.1.

4.2     Termination of Voting Obligations . Section 4 shall terminate automatically and have no further force or effect upon the earlier to occur of: (a) the fifteen (15) month anniversary of the Completion Date; (b) the date of the consummation of a Change of Control; and (c) a Corporate Change.

5.     Company Covenants .

5.1     Nasdaq Approval . At the Next Annual Meeting or any Change of Control Meeting, the Company shall submit a resolution to its stockholders for approval (a copy of which shall be delivered promptly to the Seller), in accordance with applicable law and the rules of the Nasdaq Capital Market, of the issuances of shares of Common Stock upon conversion of all outstanding shares of the Company’s Series A Non-Voting Convertible Preferred Stock, par

 

24


value $.01 per share, in excess of the aggregate number of shares of Common Stock which the Company may issue upon conversion of the Company’s Series A Non-Voting Convertible Preferred Stock under Rule 5635(a) of the listing rules of the Nasdaq Stock Market (the “ Nasdaq Approval ”). If the Company does not obtain the Nasdaq Approval at the Next Annual Meeting or Change of Control Meeting, as applicable, the Company at its sole option may hold one or more special meetings to solicit stockholder approval of the Nasdaq Approval.

5.2     Company Information . For so long as Seller holds Registrable Securities, the Company shall deliver a copy of its Annual Report on Form 10-K, Quarterly Report on Form 10-Q and any Current Report on Form 8-K filed by the Company with the SEC promptly following the filing date of such reports.

5.3     Senior Indebtedness . At any time when any Preferred Shares (as defined in the Certificate of Designations) are outstanding, without the affirmative consent of the Seller, the Company shall not, and shall not permit any Subsidiary to, create, incur or assume any Indebtedness, except: (a) any Indebtedness of the Company or any of its Subsidiaries incurred in connection with the transactions contemplated by the Purchase Agreement (“ Transaction Debt ”), in each case, as amended, modified, restated, refinanced or replaced from time to time on terms no less favorable to the holder of the Preferred Shares than the Transaction Debt; (b) any Indebtedness of the Company or any of its Subsidiaries outstanding as of the Completion Date (“ Existing Debt ”), in each case, as amended, modified, restated, refinanced or replaced from time to time on terms no less favorable to the holder of the Preferred Shares than the Existing Debt; or (c) any Indebtedness of the Company or any of its Subsidiaries that is contractually subordinated in right of payment to the Company’s obligations to pay any Redemption Payment (as defined in the Certificate of Designations).

6.     Miscellaneous .

6.1     Governing Law; Submission to Jurisdiction . This Agreement shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Agreement shall be governed by, the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Each of the Company and Seller hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the city of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVE ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.

 

25


6.2     Waiver . Waiver by a party of a breach hereunder by another party shall not be construed as a waiver of any subsequent breach of the same or any other provision. No delay or omission by a party in exercising or availing itself of any right, power or privilege hereunder shall preclude the later exercise of any such right, power or privilege by such party. No waiver shall be effective unless made in writing with specific reference to the relevant provision(s) of this Agreement and signed by a duly authorized representative of the party granting the waiver.

6.3     Notices . All notices, instructions and other communications hereunder or in connection herewith shall be in writing, shall be sent to the address of the relevant party set forth on Exhibit C attached hereto and shall be (a) delivered personally, (b) sent by registered or certified mail, return receipt requested, postage prepaid, (c) sent via a reputable nationwide overnight courier service, (d) sent by electronic mail or (e) facsimile transmission, with a confirmation copy to be sent by registered or certified mail, return receipt requested, postage prepaid. Any such notice, instruction or communication shall be deemed to have been delivered upon receipt if delivered by hand, three (3) Business Days after it is sent by registered or certified mail, return receipt requested, postage prepaid, one (1) Business Day after it is sent via a reputable nationwide overnight courier service or when transmitted with electronic confirmation of receipt, if transmitted by electronic mail or facsimile (if such transmission is made during regular business hours of the recipient on a Business Day; or otherwise, on the next Business Day following such transmission). Any party may change its address by giving notice to the other parties in the manner provided above.

6.4     Entire Agreement . This Agreement, the Purchase Agreement and the Certificate of Designations contain the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous arrangements or understandings, whether written or oral, with respect hereto and thereto.

6.5     Amendments . No provision in this Agreement shall be supplemented, deleted or amended except in a writing executed by an authorized representative of each of the parties hereto.

6.6     Headings; Nouns and Pronouns; Section References . Headings in this Agreement are for convenience of reference only and shall not be considered in construing this Agreement. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of names and pronouns shall include the plural and vice-versa. References in this Agreement to a section or subsection shall be deemed to refer to a section or subsection of this Agreement unless otherwise expressly stated.

6.7     Severability . If, under applicable Laws, any provision hereof is invalid or unenforceable, or otherwise directly or indirectly affects the validity of any other material provision(s) of this Agreement in any jurisdiction (“ Modified Clause ”), then, it is mutually agreed that this Agreement shall endure and that the Modified Clause shall be enforced in such jurisdiction to the maximum extent permitted under applicable Laws in such jurisdiction; provided , that the parties shall consult and use all reasonable efforts to agree upon, and hereby

 

26


consent to, any valid and enforceable modification of this Agreement as may be necessary to avoid any unjust enrichment of either party and to match the intent of this Agreement as closely as possible, including the economic benefits and rights contemplated herein.

6.8     Assignment . Neither this Agreement nor any rights or duties of a party hereto may be assigned by such party, in whole or in part, without (a) the prior written consent of the Company in the case of any assignment by the Seller; or (b) the prior written consent of the Seller in the case of an assignment by the Company.

6.9     Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

6.10     Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument.

6.11     Third Party Beneficiaries . None of the provisions of this Agreement shall be for the benefit of or enforceable by any Third Party other than pursuant to Section 2.9. Except with respect to Section 2.9, no Third Party shall obtain any right under any provision of this Agreement or shall by reason of any such provision make any claim in respect of any debt, liability or obligation (or otherwise) against any party hereto.

6.12     No Strict Construction . This Agreement has been prepared jointly and will not be construed against any party.

6.13     Remedies . The rights, powers and remedies of the parties under this Agreement are cumulative and not exclusive of any other right, power or remedy which such parties may have under any other agreement or Law. No single or partial assertion or exercise of any right, power or remedy of a party hereunder shall preclude any other or further assertion or exercise thereof.

6.14     Specific Performance . The Company and the Seller hereby acknowledge and agree that the rights of the parties hereunder are special, unique and of extraordinary character, and that if any party refuses or otherwise fails to act, or to cause its Affiliates (other than the Excluded Parties in the case of Seller) to act, in accordance with the provisions of this Agreement, such refusal or failure would result in irreparable injury to the Company or the Seller, as the case may be, the exact amount of which would be difficult to ascertain or estimate and the remedies at law for which would not be reasonable or adequate compensation. Accordingly, if any party refuses or otherwise fails to act, or to cause its Affiliates (other than the Excluded Parties in the case of Seller) to act, in accordance with the provisions of this Agreement, then, in addition to any other remedy which may be available to any damaged party at law or in equity, such damaged party will be entitled to seek specific performance and injunctive relief, without posting bond or other security, and without the necessity of proving actual or threatened damages, which remedy such damaged party will be entitled to seek in any court of competent jurisdiction.

 

27


6.15     No Conflicting Agreements . The Seller hereby represents and warrants to the Company that, other than with respect to the Existing Registration Rights Agreement, it is not, as of the Completion Date, a party to, and agrees that, except with respect to any Exempt Offering, it shall not, on or after the Completion Date, enter into any agreement that conflicts with the rights granted to the Company in this Agreement. The Company hereby represents and warrants to Seller that it is not, as of the Completion Date, a party to, and further agrees with the Seller that, except with respect to any Exempt Offering, it shall not, on or after the Completion Date, enter into, any agreement that conflicts with the rights granted to the Seller in this Agreement, in each case, other than with respect to the Existing Registration Rights Agreement, or, except in connection with any Exempt Offering, enter into any agreement that contains registration rights which are more favorable than the rights granted hereunder unless any such more favorable rights are concurrently added to the rights granted hereunder. The Company further represents and warrants that the rights granted to the Seller hereunder do not in any way conflict with the rights granted to any other holder of the Company’s securities under any other agreements in effect as of the date of this Agreement, other than with respect to the Existing Registration Rights Agreement.

( Signature Page Follows )

 

28


IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first above written.

 

WISDOMTREE INVESTMENTS, INC.
By:   /s/ Jonathan Steinberg
  Name:   Jonathan Steinberg
  Title:   President and Chief Executive Officer
ETF SECURITIES LIMITED
By:   /s/ Graham Tuckwell
  Name:   Graham Tuckwell
  Title:   Director
EXISTING HOLDERS
JONATHAN STEINBERG
By:   /s/ Jonathan Steinberg
MICHAEL STEINHARDT
By:   /s/ Michael Steinhardt
THE JUDY AND MICHAEL STEINHARDT FOUNDATION
By:   /s/ Michael Steinhardt


EXHIBIT A

EXISTING HOLDERS

Jonathan Steinberg

Michael Steinhardt

The Judy and Michael Steinhardt Foundation

 

A-1


EXHIBIT B

WISDOMTREE INVESTMENTS, INC.

Selling Stockholder

Questionnaire

in Connection with Filing of

Form S-3 to Register Common

Stock

held by ETF Securities Limited

 

 

WisdomTree Investments, Inc. (the “Company”) is planning to file a registration statement on Form S-3 (the “Registration Statement”) for the registration and resale of its Common Stock (the “Offering”). The Registration Statement and the related prospectus for the Offering (collectively, the “Offering Documents”) require the disclosure of certain information concerning ETF Securities Limited (“ETF”) in the Offering. This questionnaire is being distributed to obtain that information. The information you provide in response to this questionnaire will be considered to have been furnished by you for inclusion in the Offering Documents.

Please answer each question completely, indicating “none” or “not applicable” where appropriate. References to “Common Stock” or “shares” should be interpreted as referring to the Common Stock of the Company that ETF currently owns. Where insufficient space is provided for an answer, please attach a separate sheet referring to the question by number. If you have any questions about this Questionnaire or are uncertain how to answer any question, please contact Dan Espinoza of Goodwin Procter LLP, counsel to the Company, at despinoza@goodwinlaw.com or (650) 752-3152, or Erin Canino of Goodwin Procter LLP, at ecanino@goodwinlaw.com or (650) 752-3187. Unless otherwise indicated, answers should be given as of the date this questionnaire is completed. Please note however, it is ETF’s responsibility to inform the Company of any changes that may occur to ETF’s situation between the date ETF completes this Questionnaire and the effective date of the Registration Statement . If there is any situation about which ETF has any doubt, please include a description of relevant facts so that the information may be reviewed by the Company.

PLEASE COMPLETE, SIGN AND RETURN ONE COPY OF THIS QUESTIONNAIRE VIA E-MAIL AS SOON AS POSSIBLE AND NO LATER THAN [ ] TO:

despinoza@goodwinlaw.com; and

ecanino@goodwinlaw.com

 

B-1


SELLING STOCKHOLDER QUESTIONNAIRE

 

1.   Name and Contact Information  
  Full legal name of record holder:    
  Address of record holder:    
     
  Identity of beneficial owner (if
different than record holder):
   
  Name of contact person:    
  Telephone number of contact person:    
  Email address of contact person:    
2.   Beneficial Ownership of Common Stock  

 

   (a)   

Number of shares owned by the undersigned:

 

     

   (b)   

If any of the undersigned’s shares are subject to any pledge, please describe:

 

     

   (c)   

If any of the undersigned’s shares are subject to vesting provisions, please describe:

 

     

 

3.    Beneficial Ownership of Other Securities of the Company   
   Except as set forth below in this Question 3, the undersigned is not the beneficial or registered owner of any securities of the Company other than the shares listed above in Question 2(a).
  

Type and amount of other securities beneficially own by the undersigned (do not list the shares already listed in Question 2(a)):

 

     

 

     

 

2


4.    Relationships with the Company
   Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.
  

State any exceptions here:

 

     

 

     

5.    Affiliations
   (a)    Is the undersigned or any of its affiliates, officers, directors or principal equity holders (5% or more) a registered broker-dealer?
     

     

   (b)   

Is the undersigned or any of its affiliates, officers, directors or principal equity holders (5% or more) an affiliate of a registered broker-dealer(s)? (An “affiliate” of a specified person is a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the specified person. Please contact counsel to the Company if you have questions about what it means to be an “affiliate.”)

 

     

   (c)   

If the answer to Question 5(b) is yes, identify the registered broker-dealer(s) and describe the nature of the affiliation(s):

 

     

   (d)   

If the answer to Question 5(b) is yes, were the shares acquired by the undersigned or its affiliates, officers, directors or principal equity holders (5% or more) in the ordinary course of business (if not, please explain)?

 

     

   (e)   

If the answer to Question 5(b) is yes, did the undersigned or any of its affiliates, officers, directors or principal equity holders (5% or more), at the time of its purchase of the shares, have any agreements, plans or understandings, directly or indirectly, with any person to distribute the shares (if yes, please explain)?

 

     

 

3


Note: If the undersigned or any of its affiliates, officers, directors or principal equity holders (5% or more) is an affiliate of a broker-dealer and did not purchase its shares in the ordinary course of business or at the time of the purchase had any agreements, plans or understandings, directly or indirectly, with any person to distribute the shares, the Company may be required to identify the undersigned or such affiliate, officer, director or principal equity holder (5% or more) as an underwriter in the Offering Documents.

 

6.    Voting or Investment Control over the Shares
   (a)   

Please identify the natural person or persons who have voting or investment control over the shares listed in Question 2 above:

 

     

   (b)   

Please indicate whether any of the shares to be sold are subject to a voting trust, and if so, please provide a copy of the voting trust agreement along with this questionnaire:

 

     

7.    Judgments, Orders and Decrees
  

Please list below all judgments, orders and decrees entered against the undersigned or any of its affiliates, officers, directors or principal equity holders (5% or more) that are currently in effect.

 

     

 

     

* * *

The undersigned acknowledges that the Company may, by written notice to the undersigned, suspend or withdraw the Registration Statement and require that the undersigned immediately cease sales of shares pursuant to the Registration Statement, in each case, in accordance with Section 2.2(e) and Section 2.2(f) of that certain Investor Rights Agreement, dated as of April 11, 2018, by and among ETF, the Company and the Persons listed on Exhibit A thereto, as such agreement may be amended from time to time.

The undersigned hereby acknowledges that the Company will provide drafts of the Offering Documents, which will include a draft preliminary prospectus, and confirms that the undersigned will review such drafts in their entirety. The undersigned hereby confirms that the undersigned will review all subsequent drafts and amendments of the Offering Documents provided to the undersigned by the Company and will review the Offering Documents and any amendments or

 

4


supplements thereto as they become publicly available on the Securities and Exchange Commission’s EDGAR system, including without limitation the information regarding the undersigned contained in the sections of the Offering Documents captioned “Selling Stockholders” and “Plan of Distribution,” and confirms that, to the best of the undersigned’s knowledge, such information regarding the undersigned is true, complete and accurate in every respect except as indicated in this questionnaire.

By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Questions 1 through 7 above and the inclusion of such information in the Offering Documents, any amendments thereto and the related prospectus. The undersigned understands that such information will be relied upon by the Company in connection with the preparation, amendment or supplement of the Offering Documents.

[ Signature page follows ]

 

5


Signature

I have reviewed the answers given to the above questions and affirm that the same are true, complete and accurate in every respect to the best of my knowledge. I understand that the Company, the underwriters and their respective (and the undersigned’s) counsel will rely on the information provided in this questionnaire and in any further communications regarding the matters addressed in this questionnaire that I may have with them. I AGREE TO NOTIFY THE COMPANY IMMEDIATELY OF ANY CHANGES IN THIS INFORMATION THAT I BECOME AWARE OF PRIOR TO THE CONSUMMATION OF THE OFFERING.

 

Date:                                        ETF Securities Limited

 

     

 

    Signature

 

     

 

    Title

 

6


EXHIBIT C

NOTICES

 

(a) If to the Company:

WisdomTree Investments, Inc.

245 Park Avenue

35th Floor

New York, New York 10167

Attention: Chief Legal Officer or General Counsel

Facsimile No.: 917-267-3851

Email: legalnotice@wisdomtree.com

with a copy to:

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

Attention: Jocelyn Arel

Facsimile: (617) 321-4344

email: JArel@goodwinprocter.com

 

(b) If to Seller:

ETF Securities Limited

Ordnance House, 31 Pier Road

St. Helier, Jersey JE4 8PW

Attention: Graham Tuckwell

Facsimile No.: +44 207 448 4366

Email: graham.tuckwell@etfsecurities.com

with a copy to:

White & Case LLP

5 Old Broad Street

London

EC2N 1DW

Attention: Marcus Booth

Facsimile No.: +44 207 532 1001

Email: mbooth@whitecase.com

 

C-1

Exhibit 10.1

EXECUTION VERSION

 

 

$250,000,000

CREDIT AGREEMENT

Dated as of April 11, 2018

among

WISDOMTREE INVESTMENTS, INC.

as the Parent and U.S. Borrower,

WISDOMTREE INTERNATIONAL HOLDINGS LTD

as the English Borrower,

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

as Administrative Agent, Collateral Agent, L/C Issuer and Lender

and

THE OTHER LENDERS PARTY HERETO FROM TIME TO TIME

 

 

CREDIT SUISSE SECURITIES (USA) LLC

and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

as Joint Lead Arrangers and Joint Bookrunners,

and

ROYAL BANK OF CANADA,

BMO CAPITAL MARKETS,

FIFTH THIRD BANK

and

PNC CAPITAL MARKETS LLC

as Co-Lead Arrangers,

and

STANDARD CHARTERED BANK

as Co-Arranger

and

BANK OF AMERICA, N.A.

as Syndication Agent

 

 


TABLE OF CONTENTS

 

ARTICLE I  

DEFINITIONS AND ACCOUNTING TERMS

     1  
  Section 1.01.    

Defined Terms

     1  
  Section 1.02.    

Other Interpretive Provisions

     69  
  Section 1.03.    

Accounting Terms

     70  
  Section 1.04.    

Rounding

     70  
  Section 1.05.    

References to Agreements, Laws, Etc

     70  
  Section 1.06.    

Times of Day

     70  
  Section 1.07.    

Timing of Payment or Performance

     70  
  Section 1.08.    

Limited Condition Transactions

     71  
  Section 1.09.    

Pro Forma Calculations

     71  
  Section 1.10.    

Letters of Credit

     73  
  Section 1.11.    

Certifications

     73  
  Section 1.12.    

Calculation of Exchange Rate

     73  
  Section 1.13.    

Cashless Settlement

     73  
  Section 1.14.    

Jersey Terms

     73  
  Section 1.15.    

LIBOR Discontinuation

     74  
ARTICLE II  

THE COMMITMENTS AND CREDIT EXTENSIONS

     74  
  Section 2.01.    

The Loans

     74  
  Section 2.02.    

Borrowings, Conversions and Continuations of Loans

     75  
  Section 2.03.    

Letters of Credit

     78  
  Section 2.04.    

Utilization of Multicurrency Revolving Commitments in an Alternative Currency

     87  
  Section 2.05.    

Prepayments

     90  
  Section 2.06.    

Termination or Reduction of Commitments

     94  
  Section 2.07.    

Repayment of Loans

     95  
  Section 2.08.    

Interest

     95  
  Section 2.09.    

Fees

     95  
  Section 2.10.    

Computation of Interest and Fees

     96  
  Section 2.11.    

Evidence of Indebtedness

     96  
  Section 2.12.    

Payments Generally

     97  
  Section 2.13.    

Sharing of Payments

     99  
  Section 2.14.    

Incremental Credit Extensions

     100  
  Section 2.15.    

Refinancing Amendments

     107  
  Section 2.16.    

Extension of Term Loans; Extension of Revolving Credit Loans

     108  
  Section 2.17.    

Defaulting Lenders

     112  
  Section 2.18.    

Special Provisions Relating to a Re-Denomination Event

     113  
  Section 2.19.    

Parent as Borrower Representative

     114  
ARTICLE III  

TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY

     114  
  Section 3.01.    

Taxes

     114  
  Section 3.02.    

Illegality

     121  
  Section 3.03.    

Inability to Determine Rates

     121  
  Section 3.04.    

Increased Cost and Reduced Return; Capital Adequacy; LIBOR Rate Loan Reserves

     122  
  Section 3.05.    

Funding Losses

     123  

 

i


  Section 3.06.    

Matters Applicable to All Requests for Compensation

     124  
  Section 3.07.    

Replacement of Lenders under Certain Circumstances

     125  
  Section 3.08.    

Survival

     126  
ARTICLE IV  

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

     126  
  Section 4.01.    

Conditions to Initial Credit Extension

     126  
  Section 4.02.    

Conditions to All Credit Extensions after the Closing Date

     129  
ARTICLE V  

REPRESENTATIONS AND WARRANTIES

     130  
  Section 5.01.    

Existence, Qualification and Power; Compliance with Laws

     130  
  Section 5.02.    

Authorization; No Contravention

     130  
  Section 5.03.    

Governmental Authorization

     131  
  Section 5.04.    

Binding Effect

     131  
  Section 5.05.    

Financial Statements; No Material Adverse Effect; No Default

     131  
  Section 5.06.    

Litigation

     132  
  Section 5.07.    

Ownership of Property; Liens

     132  
  Section 5.08.    

Environmental Matters

     132  
  Section 5.09.    

Taxes

     133  
  Section 5.10.    

ERISA Compliance

     133  
  Section 5.11.    

Use of Proceeds

     134  
  Section 5.12.    

Margin Regulations; Investment Company Act

     134  
  Section 5.13.    

Disclosure

     134  
  Section 5.14.    

Labor Matters

     135  
  Section 5.15.    

Intellectual Property; Licenses, Etc

     135  
  Section 5.16.    

Solvency

     135  
  Section 5.17.    

USA Patriot Act; Sanctions Laws and Regulations; Anti-Corruption Laws

     135  
  Section 5.18.    

Security Documents

     136  
  Section 5.19.    

No Regulated Entities

     136  
  Section 5.20.    

COMI

     136  
ARTICLE VI   AFFIRMATIVE COVENANTS      137  
  Section 6.01.    

Financial Statements

     137  
  Section 6.02.    

Certificates; Other Information

     139  
  Section 6.03.    

Notices

     140  
  Section 6.04.    

Payment of Taxes

     140  
  Section 6.05.    

Preservation of Existence, Etc

     140  
  Section 6.06.    

Maintenance of Properties; Intellectual Property

     141  
  Section 6.07.    

Maintenance of Insurance

     141  
  Section 6.08.    

Compliance with Laws

     141  
  Section 6.09.    

Books and Records

     141  
  Section 6.10.    

Inspection Rights

     142  
  Section 6.11.    

Additional Collateral; Additional Guarantors

     142  
  Section 6.12.    

Compliance with Environmental Laws

     146  
  Section 6.13.    

Further Assurances; Post-Closing Obligations

     146  
  Section 6.14.    

Designation of Subsidiaries

     146  
  Section 6.15.    

Use of Proceeds

     147  
  Section 6.16.    

Employee Benefits

     148  
  Section 6.17.    

COMI Undertaking

     148  

 

ii


  Section 6.18.    

Maintenance of Ratings

     148  
ARTICLE VII   NEGATIVE COVENANTS      148  
  Section 7.01.    

Liens

     148  
  Section 7.02.    

Investments

     153  
  Section 7.03.    

Indebtedness

     156  
  Section 7.04.    

Fundamental Changes

     159  
  Section 7.05.    

Dispositions

     160  
  Section 7.06.    

Restricted Payments

     162  
  Section 7.07.    

Change in Nature of Business

     164  
  Section 7.08.    

Transactions with Affiliates

     164  
  Section 7.09.    

Burdensome Agreements

     165  
  Section 7.10.    

Total Leverage Ratio

     167  
  Section 7.11.    

Fiscal Year

     167  
  Section 7.12.    

Prepayments, Etc. of Subordinated Indebtedness; Certain Amendments

     167  
ARTICLE VIII   EVENTS OF DEFAULT AND REMEDIES      168  
  Section 8.01.    

Events of Default

     168  
  Section 8.02.    

Remedies Upon Event of Default

     170  
  Section 8.03.    

Application of Funds

     171  
ARTICLE IX   ADMINISTRATIVE AGENT AND OTHER AGENTS      173  
  Section 9.01.    

Appointment and Authority

     173  
  Section 9.02.    

Rights as a Lender

     174  
  Section 9.03.    

Exculpatory Provisions

     174  
  Section 9.04.    

Reliance by Administrative Agent

     175  
  Section 9.05.    

Delegation of Duties

     175  
  Section 9.06.    

Resignation of Administrative Agent

     175  
  Section 9.07.    

Non-Reliance on Administrative Agent and Other Lenders

     176  
  Section 9.08.    

No Other Duties, Etc

     176  
  Section 9.09.    

Administrative Agent May File Proofs of Claim

     176  
  Section 9.10.    

Collateral and Guaranty Matters

     177  
  Section 9.11.    

Secured Treasury Services Agreements and Secured Hedge Agreements

     178  
  Section 9.12.    

Lender Representations Regarding ERISA

     179  
  Section 9.13.    

Administrative Agent or Collateral Agent as UK Security Trustee

     180  
  Section 9.14.    

Release of Guarantors and Collateral

     181  
ARTICLE X   MISCELLANEOUS      182  
  Section 10.01.    

Amendments, Etc

     182  
  Section 10.02.    

Notices and Other Communications

     185  
  Section 10.03.    

No Waiver; Cumulative Remedies

     187  
  Section 10.04.    

Attorney Costs and Expenses

     188  
  Section 10.05.    

Indemnification by the Borrower

     188  
  Section 10.06.    

Payments Set Aside

     190  
  Section 10.07.    

Successors and Assigns

     190  
  Section 10.08.    

Confidentiality

     196  
  Section 10.09.    

Setoff

     197  

 

iii


  Section 10.10.    

Interest Rate Limitation

     197  
  Section 10.11.    

Counterparts

     198  
  Section 10.12.    

Integration

     198  
  Section 10.13.    

Survival of Representations and Warranties

     198  
  Section 10.14.    

Severability

     198  
  Section 10.15.    

Governing Law

     198  
  Section 10.16.    

Waiver of Right to Trial by Jury

     199  
  Section 10.17.    

Binding Effect

     199  
  Section 10.18.    

USA Patriot Act

     200  
  Section 10.19.    

No Advisory or Fiduciary Responsibility

     200  
  Section 10.20.    

Intercreditor Agreements

     200  
  Section 10.21.    

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

     200  
  Section 10.22.    

OID Legend

     201  
  Section 10.23.    

Waiver of Sovereign Immunity

     201  
  Section 10.24.    

Judgment Currency

     201  
  Section 10.25.    

Electronic Execution of Assignments and Certain Other Documents

     202  

SCHEDULES

 

  I   

Guarantors, Certain Scheduled Excluded Subsidiaries and Unrestricted Subsidiaries

  1.01(a)   

Initial Term A Commitments

  1.01(b)   

UK Qualifying Lender Confirmation and UK DTTP Scheme

  1.01(c)   

Applicable Designees

  1.01(d)   

Amount of Multicurrency Revolving Credit Commitments

  4.01(a)   

Closing Date Documents

  5.07   

Real Property

  5.10   

Plans

  6.13(b)   

Post-Closing Matters

  7.01(b)   

Existing Liens

  7.02(f)   

Existing Investments

  7.03(b)   

Existing Indebtedness

  7.08   

Affiliate Transactions

  7.09   

Burdensome Agreements

  10.02   

Administrative Agent’s Office, Certain Addresses for Notices

EXHIBITS

 

    

Form of

  A-1   

Parent Guarantee

  A-2   

Subsidiary Guarantee

  B   

Committed Loan Notice

  C   

Compliance Certificate

  D-1   

Term Note

  D-2   

Revolving Credit Note

  E   

Solvency Certificate

  F-1   

U.S. Security Agreement

  F-2   

English Borrower Share Pledge

  F-3   

Target Share SIA

  F-4   

UK Security Agreement

  G   

Intercompany Note

  H-1 to H-4   

Tax Certificates

  I   

Assignment and Assumption

  J   

Perfection Certificate

 

iv


CREDIT AGREEMENT

This CREDIT AGREEMENT is entered into as of April 11, 2018, among WISDOMTREE INVESTMENTS, INC., a Delaware corporation (the “ Parent ” and in its capacity as a borrower under the Revolving Credit Facility, the “ U.S. Borrower ”), WISDOMTREE INTERNATIONAL GROUP, INC., a Delaware corporation and a direct Subsidiary of the Parent (“ U.S. Midco ”), WISDOMTREE INTERNATIONAL HOLDINGS LTD, a company incorporated under the laws of England and Wales with registered number 11046784 and a direct Subsidiary of U.S. Midco (the “ English Borrower ” and, together with the U.S. Borrower, each a “ Borrower ” and collectively, the “ Borrowers ”), CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent, Collateral Agent, L/C Issuer and Lender (such terms and each capitalized term not defined in this preamble or the preliminary statements below have the meaning provided in Section  1.01 ) and each lender from time to time party hereto (collectively, the “ Lenders ” and, individually, a “ Lender ”).

PRELIMINARY STATEMENTS

The English Borrower intends to acquire (the “ Acquisition ”) the entire issued share capital of Electra Target Holdco Limited, a private company incorporated in Jersey with registered number 125128 (the “ Acquired Business ”), pursuant to that certain Share Sale Agreement dated as of November 13, 2017 (together with the schedules and exhibits thereto, and as the same may be amended, supplemented or otherwise modified from time to time, the “ Acquisition Agreement ”), among the Parent, the English Borrower and ETF Securities Limited, a private company incorporated in Jersey with registered number 88370 (the “ Seller ”).

In connection with the foregoing, the Borrowers have requested that the Lenders extend certain credit facilities in an aggregate principal amount of $250,000,000, consisting of (i) Initial Term A Loans to be made available to the English Borrower on the Closing Date in an aggregate principal amount of $200,000,000 and (ii) Multicurrency Revolving Credit Commitments (which Multicurrency Revolving Credit Commitments shall include a sub-facility as set forth herein with respect to Letters of Credit) to be made available to the Borrowers in an aggregate principal amount of $50,000,000.

The English Borrower shall use the proceeds of the Initial Term A Loans, together with borrowings by the English Borrower and/or the Parent Borrower under the Revolving Credit Facility on the Closing Date (if any) and the Closing Date Contribution, solely (a) to fund the Acquisition and (b) to pay the Transaction Expenses.

The Lenders have indicated their willingness to lend and each L/C Issuer (as defined below) has indicated its willingness to issue Letters of Credit, in each case, on the terms and subject to the conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

Section 1.01.     Defined Terms . As used in this Agreement (including in the preamble and preliminary statements hereto), the following terms shall have the meanings set forth below:


ABR ” means the highest of (a) the rate of interest determined by the Agent as its prime rate in effect at its principal office in New York City (the “ Prime Rate ”) and notified to the applicable Borrower, (b) the Federal Funds Effective Rate from time to time plus 0.50% per annum and (c) the 1-month LIBOR Rate (as defined below, and taking into account the floor) plus 1.00% per annum.

ABR Loan ” means a Loan that bears interest based on the ABR.

Acquired Business ” has the meaning set forth in the preliminary statements to this Agreement.

Acquisition ” has the meaning set forth in the preliminary statements to this Agreement.

Acquisition Agreement ” has the meaning set forth in the preliminary statements to this Agreement.

Acquisition Agreement Representations ” means the representations and warranties made by or on behalf of the Seller with respect to the Acquired Business and its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the English Borrower (or any of its Affiliates) has the right, pursuant to the Acquisition Agreement, to terminate its (or their) obligations under the Acquisition Agreement (or decline to consummate the Acquisition) as a result of a breach of such representations and warranties in the Acquisition Agreement.

Additional Lender ” has the meaning set forth in Section  2.14(c) .

Additional Refinancing Lender ” means, at any time, any Person that is not (w) a Disqualified Lender, (x) a Defaulting Lender, (y) a natural Person or (z) the Parent or any of its Subsidiaries, in each case, that agrees to provide any portion of Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment or Replacement Term Loans Amendment in accordance with Section  2.15 ; provided that each Additional Refinancing Lender shall be subject to the approval of (i) the Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed, to the extent that each such Additional Refinancing Lender is not an Affiliate of a then-existing Lender or an Approved Fund, (ii) the Parent and (iii) in the case of a Refinancing Amendment in respect of the Revolving Credit Loans, each L/C Issuer.

Administrative Agent ” means Credit Suisse AG, Cayman Islands Branch, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. Unless the context otherwise requires, the term “Administrative Agent” as used herein and in the other Loan Documents shall include the Collateral Agent.

Administrative Agent’s Office ” means the Administrative Agent’s address and account as set forth on Schedule  10.02 , or such other address or account as the Administrative Agent may from time to time notify the Borrowers and the Lenders.

Administrative Questionnaire ” means an administrative questionnaire in a form supplied by the Administrative Agent with respect to any Lender.

AdvisorEngine ” means AdvisorEngine, Inc., a Delaware corporation.

Affected Class ” has the meaning set forth in Section  3.07(a) .

Affected Casualty Event ” has the meaning set forth in Section  2.05(b)(ix) .

 

2


Affected Disposition ” has the meaning set forth in Section  2.05(b)(ix) .

Affiliate ” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto. For the avoidance of doubt, none of the Arrangers, the Agents or their respective lending Affiliates shall be deemed to be an Affiliate of the Parent or any of its Subsidiaries.

Agent Parties ” has the meaning set forth in Section  10.02(b) .

Agent-Related Persons ” means the Agents and their respective Affiliates and the respective officers, directors, employees, partners, trustees, agents, advisors, attorneys-in-fact and other representatives of each of the foregoing.

Agents ” means, collectively, the Administrative Agent, the Collateral Agent, the UK Security Trustee and the Arrangers.

Aggregate Commitments ” means the Commitments of all the Lenders.

Agreed Alternative Currency ” has the meaning assigned to that term in Section  2.04(b) .

Agreed Guaranty and Security Principles ” means, with respect to any Non-U.S. Subsidiary incorporated or formed under the laws of any jurisdiction, that a guaranty of any of the Obligations (including pursuant to the Subsidiary Guarantee) or a pledge or grant of a security interest in an asset (including Equity Interests) otherwise required to be pledged under this Agreement or any other Loan Document, in each case shall not be required to be given by such Subsidiary to the extent that such guaranty, pledge or grant:

(a)    is prohibited by or in breach of or could reasonably be expected to be in breach of (i) any Requirement of Law (including, but not limited to, any exchange control, financial assistance, corporate benefit, corporate interest, minimum capitalization, fraudulent conveyance, “interest stripping”, transfer pricing, thin capitalization, retention of title or similar laws, rules or regulations) or (ii) any Contractual Obligation in effect as of the Closing Date (or, if later, the date such Subsidiary is formed or acquired so long as not incurred in contemplation thereof (or contractual obligations not more restrictive in any material respect, solely in the case of limitations and restrictions impacting guarantees, pledges, security interests and assets, than those in existence at such earlier time));

(b)    would require consent, approval, license or authorization from any Governmental Authority (including supervisory board, works council, regulator or regulatory board (or equivalent), or other external body) to provide a guarantee, pledge or grant (unless such consent, approval, license or authorization has been received);

(c)    could reasonably be expected to result in a risk of (i) breach of the fiduciary duties of, or personal civil or criminal liability on the part of, any of any such Non-U.S. Subsidiary’s officers, directors, employees or similar persons or (ii) criminal liability on the part of any such Non-U.S. Subsidiary;

(d)    could reasonably be expected to result in material adverse tax consequences (including in relation to interest deductibility, stamp duty and the possibility to form a fiscal unity) to the Parent or any of its Restricted Subsidiaries as determined in good faith by the Parent in consultation with the Administrative Agent; or

 

3


(e)    could reasonably be expected to result in costs (including stamp duty, VAT, notarization and registration fees) or other consequences that would be excessive in relation to the benefits afforded thereby, as determined in good faith by the Parent and the Administrative Agent.

Agreement ” means this Credit Agreement, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

Agreement Currency ” has the meaning set forth in Section  10.24 .

All-In Yield ” means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, OID, upfront fees, an ABR floor greater than 1.00% or a LIBOR Rate floor greater than 0.00% (with such increased amount being equated to interest margins in accordance with this defined term for purposes of determining any increase to the Applicable Margin) or otherwise, in each case incurred or payable by the U.S. Borrower or the English Borrower, as the case may be, generally to all the Lenders of such Indebtedness; provided that (i) upfront fees and OID shall be equated to an interest rate assuming a three-year life to maturity, (ii) “All-In Yield” shall not include any structuring fees, syndication fees, ticking fees, unused line fees, commitment fees, amendment fees, underwriting and arranger fees, other similar fees and other fees in each case not paid generally to all Lenders in the primary syndication of such Indebtedness, (iii) if and to the extent such Indebtedness was originally issued with OID or upfront fees and was subsequently repriced through an amendment in connection with which no additional OID or upfront fees were incurred, the OID or upfront fees with respect to the original issuance of such Indebtedness will be taken into account and (iv) if any such Indebtedness constitutes fixed-rate Indebtedness, the fixed rate coupon of such Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis, and the All-In Yield of such fixed-rate Indebtedness on a floating rate basis shall be reasonably determined in a customary manner by the Administrative Agent based on customary financial methodology in consultation with the applicable Borrower (or, if the Administrative Agent declines (or is unable) to determine such All-In Yield or the appropriate floating rate swap on a matched-maturity basis, as reasonably determined in a customary manner based on customary financial methodology by a financial institution reasonably acceptable to the Administrative Agent and the applicable Borrower.

Alternative Currency ” means at any time, Euros, Sterling and any Agreed Alternative Currency.

Alternative Currency Alternate Rate ” means, with respect to any Alternative Currency in any jurisdiction, the rate of interest per annum notified to the Administrative Agent by that Lender as soon as practicable after notice is given under Section  3.02 , and in any event before interest is due to be paid in respect of the applicable Interest Period, based on the cost to that Lender of funding its participation in that LIBOR Rate Loan. Notwithstanding anything to the contrary contained herein, LIBOR Rate Loans may be made or maintained as Daily Rate Loans only to the extent specified in Section  3.02 .

Alternative Currency Loan ” means any Loan denominated in a currency other than U.S. Dollars.

Annual Financial Statements ” means the audited consolidated balance sheets and related statements of income and cash flows of the Parent and its subsidiaries for the fiscal years ended December 31, 2014, December 31, 2015, December 31, 2016 and December 31, 2017.

 

4


Anti-Corruption Laws ” means the United States Foreign Corrupt Practices Act of 1977 (Pub. L. No. 95 213, §§ 101-104), as amended, the UK Bribery Act of 2010 and any other anti-corruption laws, rules or regulations issued, administered or enforced by any Governmental Authority having jurisdiction over the Parent or the English Borrower or any Consolidated Party.

Anti-Money Laundering Laws ” means all applicable financial recordkeeping and reporting requirements and statutes, in each case, related to terrorism financing or money laundering, and the rules and regulations thereunder, in each case, issued, administered or enforced by any Governmental Authority having jurisdiction over the Parent or the English Borrower or any Consolidated Party, or to which the Parent, the English Borrower or any Consolidated Party is subject.

Applicable Currency ” means as to any particular payment or Loan, U.S. Dollars or the Alternative Currency in which it is denominated or is payable.

Applicable Facility Fee Percentage ” means (a) until delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter of the Parent ending after the Closing Date pursuant to Section  6.01 , a rate per annum of 0.50% and (b) thereafter, the rate per annum set forth in the table below, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section  6.02(a) :

 

Pricing Level

  

Total Leverage Ratio

  

Applicable Facility Fee Percentage

1

   > 2.25: 1.00    0.500%

2

   £ 2.25: 1:00 and > 1.25: 1.00    0.500%

3

   £ 1.25: 1.00 and > 0.75: 1.00    0.375%

4

   £ 0.75: 1.00    0.250%

Any increase or decrease in the Applicable Facility Fee Percentage resulting from a change in the Total Leverage Ratio or the corporate family rating pursuant to clause (ii) of the below proviso shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section  6.02(a) ; provided that, (i) at the option of the Required Lenders (following written notice by the Administrative Agent to the applicable Borrower(s)), the highest pricing level shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered (after giving effect to any applicable grace periods) but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default under Section  8.01(a) or 8.01(f) shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (ii) if at any time the Parent obtains a corporate family rating from each of Moody’s and S&P of at least BBB- (stable outlook or better) and Baa3 (stable outlook or better), respectively, then, the applicable pricing level shall be level 3 even if the Total Leverage Ratio exceeds 1.25: 1.00 and, for the avoidance of doubt, upon achieving a Total Leverage Ratio equal to or less than 0.75: 1.00, the pricing level shall be level 4.

Notwithstanding the foregoing, (x) the Applicable Facility Fee Percentage in respect of any Class of Extended Revolving Credit Commitments or Revolving Credit Loans made pursuant to any Extended Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant

 

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Extension Amendment, (y) the Applicable Facility Fee Percentage in respect of any Revolving Credit Commitment Increase or any Class of Incremental Revolving Credit Loans shall be the applicable percentages per annum set forth in the relevant Incremental Amendment and (z) the Applicable Facility Fee Percentage in respect of any Class of Refinancing Revolving Credit Commitments or any Class of Refinancing Revolving Credit Loans shall be the applicable percentages per annum set forth in the applicable Refinancing Amendment.

Applicable Designee ” means any Affiliate of a Lender designated thereby from time to time with the consent of the Administrative Agent (which such consent shall not be unreasonably withheld or delayed) to fund all or any portion of such Lender’s Multicurrency Revolving Commitment Percentage of Multicurrency Revolving Credit Loans (and L/C Obligations) under this Agreement. As of the Closing Date, the Applicable Designees of each Multicurrency Revolving Credit Lender are set forth on Schedule 1.01(c) (which schedule may be updated from time to time upon written notice by any such Lender to the Administrative Agent).

Applicable Margin ” means a percentage per annum equal to:

(a) in the case of Initial Term A Loans,

(i)    until delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter of the Parent ending after the Closing Date pursuant to Section  6.01 , (1) for LIBOR Rate Loans, 1.75% and (2) for ABR Loans, 0.75%, and

(ii)    thereafter, the percentages per annum set forth in the table below, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section  6.02(a) :

 

Applicable Margin

Pricing Level

  

Total Leverage Ratio

  

LIBOR Rate Loans

  

ABR Loans

1

   > 2.25: 1.00    2.00%    1.00%

2

   £ 2.25: 1:00 and > 1.25: 1.00    1.75%    0.75%

3

   £ 1.25: 1.00    1.50%    0.50%

(b) in the case of Multicurrency Revolving Credit Loans and Letters of Credit fees,

(i)    until delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter of the Parent ending after the Closing Date pursuant to Section  6.01 , (1) for LIBOR Rate Loans, 1.25% and (2) for ABR Loans, 0.25%, and

(ii)    thereafter, the percentages per annum set forth in the table below, based upon the Total Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section  6.02(a) :

 

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Applicable Margin

 

Pricing Level

  

Total Leverage Ratio

  

LIBOR Rate Loans and Letter of

                   Credit Fees                  

  

ABR Loans

1

   > 2.25: 1.00    1.500%    0.500%

2

   £ 2.25: 1:00 and > 1.25: 1.00    1.250%    0.250%

3

   £ 1.25: 1.00 and > 0.75: 1.00    1.125%    0.125%

4

   £ 0.75: 1.00    1.250%    0.250%

Any increase or decrease in the Applicable Margin for Initial Term A Loans, Multicurrency Revolving Credit Loans and Letters of Credit respectively resulting from a change in the Total Leverage Ratio or the corporate family rating pursuant to clause (ii) of the below proviso shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section  6.02(a) ; provided that, (i) at the option of the Required Lenders (following written notice by the Administrative Agent to the applicable Borrower(s)), the highest pricing level shall apply (x) as of the first Business Day after the date on which a Compliance Certificate was required to have been delivered (after giving effect to any applicable grace periods) but was not delivered, and shall continue to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default under Section  8.01(a) or 8.01(f) shall have occurred and be continuing, and shall continue to so apply to but excluding the date on which such Event of Default is cured or waived (and thereafter the pricing level otherwise determined in accordance with this definition shall apply) and (ii) if at any time the Parent obtains a corporate family rating from each of Moody’s and S&P of at least BBB- (stable outlook or better) and Baa3 (stable outlook or better), respectively, then, the applicable pricing level shall be level 3 even if the Total Leverage Ratio exceeds 1.25: 1.00 and, for the avoidance of doubt, upon achieving a Total Leverage Ratio equal to or less than 0.75: 1.00, the pricing level shall be level 4. For the avoidance of doubt, the applicable pricing level at any given time for Multicurrency Revolving Credit Loans shall be the same pricing level for the Applicable Facility Fee Percentage at such time.

Notwithstanding the foregoing, (v) the Applicable Margin in respect of any Class of Extended Revolving Credit Commitments or any Extended Term Loans or Revolving Credit Loans made pursuant to any Extended Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (w) the Applicable Margin in respect of any Revolving Credit Commitment Increase, New Revolving Credit Commitment, any Class of Incremental Term Loans or any Class of Incremental Revolving Credit Loans shall be the applicable percentages per annum set forth in the relevant Incremental Amendment, (x) the Applicable Margin in respect of any Class of Replacement Term Loans shall be the applicable percentages per annum set forth in the applicable Replacement Term Loans Amendment, (y) the Applicable Margin in respect of any Class of Refinancing Revolving Credit Commitments, any Class of Refinancing Revolving Credit Loans or any Class of Refinancing Term Loans shall be the applicable percentages per annum set forth in the applicable Refinancing Amendment and (z) in the case of the Initial Term A Loans, the Applicable Margin shall be increased as, and to the extent necessary, to comply with the provisions of Section  2.14 .

In the event that any financial statement or certificate delivered pursuant to Section  6.01 or 6.02(a) is shown to be inaccurate (at a time when this Agreement is in effect and unpaid Obligations

 

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under this Agreement are outstanding (other than contingent obligations in respect of which no assertion of liability (whether oral or written) and no claim or demand for payment (whether oral or written) has been made (and, in the case of Obligations for indemnification, no notice for indemnification has been issued by the indemnitee) at such time), and such inaccuracy, if corrected, would have led to the application of a different Applicable Margin for any period (an “ Applicable Period ”) that was higher than the Applicable Margin applied for such Applicable Period, then (x) the Parent shall immediately deliver to the Administrative Agent a correct Compliance Certificate required by Section  6.02(a) for such Applicable Period(s) and (y) the applicable Borrower shall immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Periods minus any decreased Applicable Margin, if any, for such Applicable Periods. Nothing in this paragraph shall limit the rights of the Administrative Agent or any Lender under Section  2.08(b) or Article VIII .

Applicable Requirements ” means, in respect of any Indebtedness, that such Indebtedness satisfies the following requirements:

(a)    such Indebtedness shall not mature earlier than the date that is 91 days after the Latest Maturity Date of the Term Loans outstanding at the time of incurrence of such Indebtedness (which, in the case of customary bridge loans, shall be determined by reference to the final maturity of the notes, loans or demand securities into which such bridge loans are to be exchanged or converted, or refinanced with the Net Proceeds of, as applicable, and other than customary offers to repurchase or mandatory prepayments upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default);

(b)    the holders of such Indebtedness may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments with Net Proceeds of the type described in paragraph (a) of the definition thereof);

(c)    such Indebtedness does not have mandatory prepayment categories that are not applicable to the Initial Term A Loans;

(d)    such Indebtedness shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Term Loans outstanding at the time of incurrence of such Indebtedness;

(e)    if such Indebtedness is secured by Liens on the Collateral that are junior in priority to the Liens securing the Obligations, a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to a Customary Intercreditor Agreement (or any existing Customary Intercreditor Agreement shall have been amended or replaced in a manner reasonably acceptable to the Borrowers and the Administrative Agent, which results in such Senior Representative having rights to share in the Collateral on a junior lien basis);

(f)    if such Indebtedness is subordinated in right of payment to the Obligations, then such Indebtedness shall be subordinated on terms reasonably satisfactory to the Administrative Agent;

(g)    to the extent such Indebtedness is secured by any property or assets of any U.S. Loan Party, it shall not be secured by any property or assets of any U.S. Loan Party other than the Collateral (it being agreed that such Indebtedness shall not be required to be secured by all of the Collateral);

 

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(h)    such Indebtedness shall not be guaranteed by any Person other than any Loan Party that guarantees or is otherwise an obligor with respect to the Obligations of the U.S. Borrower; and

(i)    the other terms and conditions of such Indebtedness shall be as agreed between the applicable U.S. Loan Party and the lenders providing such Indebtedness.

Appropriate Lender ” means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class and (b) with respect to Letters of Credit, (i) the relevant L/C Issuers and (ii) the Multicurrency Revolving Credit Lenders.

Approved Bank ” has the meaning set forth in clause  (c) of the definition of “Cash Equivalents”.

Approved Fund ” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.

Approved Member State ” means Belgium, France, Germany, Ireland, Italy, Luxembourg, The Netherlands, Spain, Sweden and the United Kingdom.

Arrangers ” means Credit Suisse Securities (USA) LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), in their capacity as joint lead arrangers and joint bookrunners under this Agreement.

Assignee ” has the meaning set forth in Section  10.07(b) .

Assignment and Assumption ” means an Assignment and Assumption substantially in the form of Exhibit I hereto or any other form approved by the Administrative Agent and the Borrower.

Attorney Costs ” means and includes all reasonable and documented out-of-pocket fees, expenses and disbursements of any law firm or other external legal counsel.

Attributable Indebtedness ” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

Auto-Extension Letter of Credit ” has the meaning set forth in Section  2.03(b)(iii) .

Available Amount ” means, at any date (the “ Reference Date ”), an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:

(a)    50% of Consolidated Net Income for the period (treated as one accounting period) from the first day of the first full fiscal quarter of the Parent commencing after the Closing Date to the end of the most recently ended Test Period as of such date, or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit, plus

(b)    100% of the aggregate amount of contributions to the common capital of the Parent (other than from any of its Restricted Subsidiaries) or the Net Proceeds of the issuance of Qualified Equity Interests of the Parent (other than to any of its Restricted Subsidiaries), in each case received in cash and Cash Equivalents after the Closing Date, in each case other than Excluded Contributions, plus

 

9


(c)    to the extent not (i) included in the calculation of Consolidated Net Income above or (ii) already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment, the aggregate amount of all cash dividends and other cash distributions received by the Parent or any Restricted Subsidiary from any Minority Investments or Unrestricted Subsidiaries during the period from and including the Business Day immediately following the Closing Date through and including the Reference Date in respect of Investments in such Unrestricted Subsidiary or Minority Investments made by the Parent or any Restricted Subsidiary up to the amount of the Investment made in reliance on the Available Amount, plus

(d)    to the extent not (i) included in the calculation of Consolidated Net Income above or (ii) already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment, the aggregate amount of all cash repayments of principal received by the Parent or any Restricted Subsidiary from any Minority Investments or Unrestricted Subsidiaries during the period from and including the Business Day immediately following the Closing Date through and including the Reference Date in respect of loans or advances made by the Parent or any Restricted Subsidiary to such Minority Investments or Unrestricted Subsidiaries up to the amount of the loans or advances made in reliance on the Available Amount, plus

(e)    to the extent not (i) included in the calculation of Consolidated Net Income above, (ii) already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment or (iii) required to be applied to prepay Term Loans in accordance with Section  2.05(b)(ii) , the aggregate amount of all Net Proceeds received by the Parent or any Restricted Subsidiary in connection with the sale, transfer or other disposition of its ownership interest in any Minority Investment or Unrestricted Subsidiary during the period from and including the Business Day immediately following the Closing Date through and including the Reference Date, in each case, in respect of Investments made by the Parent or any Restricted Subsidiary in, or loans or advances made by the Parent or any Restricted Subsidiary to, such Unrestricted Subsidiary or Minority Investments up to the aggregate amount of the Investments and/or loans and advances made in reliance on the Available Amount, plus

(f)    in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, consolidation or amalgamation of an Unrestricted Subsidiary into the Borrower or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary after the Closing Date, the fair market value of the Investment made in such Unrestricted Subsidiary pursuant to Section 7.02(r) (or the assets transferred), as determined in good faith of the Borrower at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, consolidation or amalgamation or transfer of assets (after taking into consideration any Indebtedness associated with the Unrestricted Subsidiary so designated or merged or consolidated or Indebtedness associated with the assets so transferred), plus

(g)    the aggregate amount of Declined Proceeds since the Closing Date, minus

(h)    any amount of the Available Amount used to make Investments pursuant to Section  7.02(r) after the Closing Date and prior to such time.

 

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Available Multicurrency Revolving Credit Commitment ” means, as to any Multicurrency Revolving Credit Lender at any time an amount equal to the excess, if any, of (a) such Lender’s Multicurrency Revolving Credit Commitment over (b) the sum of (i) the aggregate Effective Amount of then outstanding Multicurrency Revolving Credit Loans made by such Lender and (ii) such Lender’s Multicurrency Revolving Credit Pro Rata Share of the Effective Amount of L/C Obligations then outstanding.

Availability Period ” means, with respect to the Multicurrency Revolving Credit Commitments, the period from and including the Closing Date to the earliest of (a) the Maturity Date of the Multicurrency Revolving Credit Facility, (b) the date of termination of the aggregate Multicurrency Revolving Credit Commitments pursuant to Section  2.06 , and (c) the date of termination of the commitment of each Multicurrency Revolving Credit Lender to make Multicurrency Revolving Credit Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section  8.02 .

Bail-in Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bank ” means any Person that is a Lender, Agent or an Arranger, or an Affiliate of any of the foregoing, at the time it enters into a Secured Hedge Agreement or a Treasury Services Agreement (notwithstanding that such Bank may cease to be a Lender, an Agent, an Arranger or an Affiliate of any of the foregoing after entering into a Secured Hedge Agreement or a Treasury Services Agreement), as applicable, in its capacity as a party thereto and that (other than in the case of an Agent, Arranger or Affiliate of the foregoing) has been specifically designated a “Bank” with respect to such Secured Hedge Agreement or Treasury Services Agreement, as applicable, in a writing from the applicable Borrower to the Administrative Agent, and (other than a Person already party hereto as a Lender, Agent or Arranger) that delivers to the Administrative Agent a letter agreement reasonably satisfactory to it (i) appointing the Administrative Agent as its agent under the applicable Loan Documents and (ii) agreeing to be bound by Sections  9.11 , 10.05 , 10.08 , 10.15 , 10.16 and 10.20 and Article  IX as if it were a Lender.

Benefit Plan ” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

Bona Fide Debt Fund ” means any Person that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business which is managed, sponsored or advised by any Person controlling, controlled by or under common control with (a) any competitor of Parent and/or any of its Subsidiaries or (b) any Affiliate of such competitor, but with respect to which no personnel involved with any investment in such competitor or Affiliate (i) makes, has the right to make or participates with others in making any investment decisions with respect to such Person or (ii) has access to any information (other than information that is publicly available) relating to Parent or its Subsidiaries or any entity that forms a part of the business of the Parent or any of its Subsidiaries.

Borrower ” and “ Borrowers ” have the respective meanings set forth in the preamble to this Agreement.

 

11


Borrower Materials ” has the meaning set forth in Section  6.01(d) .

Borrowing ” means a Revolving Credit Borrowing or a Term Borrowing, as the context may require.

Business Day ” means (i) as it relates to any payment, determination, funding or notice to be made or given in connection with any U.S. Dollar-denominated Loan, or otherwise to be made or given to or from the Administrative Agent, a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close, or are in fact closed; provided , however , that when used in connection with a LIBOR Rate Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market; provided , further , that when used in connection with any Letter of Credit, the term “Business Day” shall also exclude any day on which commercial banks in the city in which the respective L/C Issuer for such Letter of Credit is domiciled are required by law to close and (ii) as it relates to any payment, determination, funding or notice to be made or given in connection with any Alternative Currency Loan, any day (A) on which dealings in deposits in the Alternative Currency are carried out in the London interbank market, (B) on which commercial banks and foreign exchange markets are open for business in London, New York City, and the principal financial center for such Alternative Currency, and (C) with respect to any such payment, determination or funding to be made in connection with any Alternative Currency Loan denominated in Euros, on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) System payment system launched on November 19, 2007 or any successor settlement system is open.

Capitalized Leases ” means all leases that have been or are required to be, in accordance with GAAP, recorded as capitalized leases; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance with GAAP.

Capitalized Software Expenditures ” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.

Cash Collateral ” has the meaning set forth in Section  2.03(g) .

Cash Collateral Account ” means a blocked account at a commercial bank selected by the Administrative Agent, in the name of the Administrative Agent and under the sole dominion and “control” (within the meaning of the UCC) of the Administrative Agent, and otherwise established in a manner reasonably satisfactory to the Administrative Agent.

Cash Collateralize ” and “ Cash Collateralization ” have the meaning set forth in Section  2.03(g) .

Cash Equivalents ” means any of the following types of Investments, to the extent owned by any Consolidated Party:

(a)    U.S. Dollars, Euros, Sterling, any other Agreed Alternative Currencies, any national currency of any Approved Member State, and any local currencies in which the Parent or any of its Subsidiaries transact business from time to time in the ordinary course of its business;

 

12


(b)    readily marketable obligations issued or directly and fully guaranteed or insured by the government or any agency or instrumentality of the United States or any Approved Member State having average maturities of not more than 24 months from the date of acquisition thereof; provided that the full faith and credit of the United States or the applicable Approved Member State is pledged in support thereof;

(c)    time deposits or eurodollar time deposits with, insured certificates of deposit, bankers’ acceptances or overnight bank deposits of, or letters of credit issued by, any commercial bank that (i) is a Lender or (ii)(A) is organized under the Laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development or is the principal banking Subsidiary of a bank holding company organized under the Laws of the United States, any state thereof, the District of Columbia or any member nation of the Organization for Economic Cooperation and Development and is a member of the Federal Reserve System, and (B) has combined capital and surplus of at least $250,000,000 in the case of any U.S. Bank or $100,000,000 in the case of any non-U.S. bank (any such bank in the foregoing clause  (i) or (ii)  being an “ Approved Bank ”), in each case with maturities not exceeding 12 months from the date of acquisition thereof;

(d)    commercial paper and variable or fixed rate notes issued by an Approved Bank (or by the parent company thereof) or any variable or fixed rate note issued by, or guaranteed by, a corporation (other than structured investment vehicles and other than corporations used in structured financing transactions) and rated A-1 (or the equivalent thereof) or better by S&P or Prime-1 (or the equivalent thereof) or better by Moody’s, in each case with maturities of not more than 24 months from the date of acquisition thereof;

(e)    marketable short-term money market and similar funds having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Borrowers) and, in each case, maturing within 24 months after the date of creation or acquisition thereof;

(f)    repurchase obligations for underlying securities of the types described in clause  (b) , (c) or (e)  above entered into with any Approved Bank;

(g)    readily marketable direct obligations with average maturities of 24 months or less from the date of acquisition issued by any state, commonwealth or territory of the United States, or any political subdivision or taxing authority thereof, in each case having an investment grade rating from either S&P or Moody’s (or the equivalent thereof);

(h)    Investments (other than in structured investment vehicles and structured financing transactions) with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s;

(i)    securities with maturities of 12 months or less from the date of acquisition backed by standby letters of credit issued by any Approved Bank;

(j)    Investments, classified in accordance with GAAP as current assets of any Consolidated Party, in money market investment programs which are registered under the Investment Company Act of 1940 or which are administered by financial institutions having capital of at least $250,000,000, and, in either case, the portfolios of which are limited such that substantially all of such Investments are of the character, quality and maturity described in clauses  (a) through (i)  above;

 

13


(k)    instruments equivalent to those referred to in clauses (a) through (i) above denominated in Euros, Sterling, any other Agreed Alternative Currencies, any national currency of any Approved Member State, and any local currencies in which the Parent or any of its Subsidiaries transact business from time to time in the ordinary course of its business or any other foreign currency comparable in credit quality and tenor to the foregoing and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Restricted Subsidiary organized in such jurisdiction;

(l)    investment funds investing at least 95% of their assets in securities of the types described in clauses  (a) through (j)  above; and

(m)    investments permitted pursuant to any investment policy approved by the board of directors of the Parent from time to time and consistent with past practices.

Cash Management Obligations ” means obligations owed by any Consolidated Party to any Bank in respect of any overdraft and related liabilities arising from treasury, depository, credit card, debit card and cash management services or any automated clearing house transfers of funds, in each case, pursuant to a Treasury Services Agreement, in each case, to the extent designated by the applicable Borrower and such Bank as “Cash Management Obligations” in writing to the Administrative Agent. The designation of any Cash Management Obligations shall not create in favor of such Bank any rights in connection with the management or release of any Collateral or of the obligations of any Guarantor under the Loan Documents.

Casualty Event ” means any event that gives rise to the receipt by any Consolidated Party of any insurance proceeds (excluding business interruption insurance proceeds) or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.

CFC ” means a controlled foreign corporation within the meaning of Section 957 of the Code.

CFC Holding Company ” has the meaning set forth in the definition of “Excluded Subsidiary.”

Change of Control ” shall be deemed to occur if:

(a)    any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person and its Subsidiaries and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Equity Interests representing 35% or more of the aggregate voting power represented by the issued and outstanding Equity Interests of the Parent; or

(b)    the Parent ceases to own, directly or indirectly, the English Borrower.

Class ” (a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Multicurrency Revolving Credit Commitments,

 

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Extended Revolving Credit Commitments of a given Extension Series, Refinancing Revolving Credit Commitments of a given Refinancing Series, Initial Term A Commitments, Incremental Term Commitments, Refinancing Term Commitments of a given Refinancing Series or Commitments in respect of Replacement Term Loans and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Multicurrency Revolving Credit Loans, Revolving Credit Loans under Extended Revolving Credit Commitments of a given Extension Series, Incremental Revolving Credit Loans, Revolving Credit Loans under Refinancing Revolving Credit Commitments of a given Refinancing Series, Initial Term A Loans, Extended Term Loans of a given Extension Series, Incremental Term Loans, Refinancing Term Loans of a given Refinancing Series or Replacement Term Loans. Commitments (and in each case, the Loans made pursuant to such Commitments) that have different terms and conditions shall be construed to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such Commitments) that have the same terms and conditions shall be construed to be in the same Class.

Closing Date ” means April 11, 2018.

Closing Date Contribution ” means (i) the contribution of cash by the Parent directly or indirectly through one or more of its Subsidiaries to the English Borrower in exchange for Equity Interests thereof and/or (ii) the making of intercompany loans by the Parent to the English Borrower, in an aggregate amount of cash equity contributions and/or intercompany loans of $53,000,000, provided that any such intercompany loans shall be subordinated in right of payment to the Obligations.

Closing Date Preferred Shares ” means the Parent’s Series A Non-Voting Convertible Preferred Stock, par value $0.01 per share.

Code ” means the U.S. Internal Revenue Code of 1986, as amended.

Collateral ” means the “Collateral” as defined in the U.S. Security Agreement and all the “Collateral” or “Pledged Assets” or “Security” (or any similar or equivalent definition in any jurisdiction other than the United States), in each case as defined in any other Collateral Document and any other assets pledged pursuant to any Collateral Document (but in any event excluding the Excluded Assets).

Collateral Agent ” means Credit Suisse AG, Cayman Islands Branch, in its capacity as collateral agent under any of the Collateral Documents, or as the UK Security Trustee under the laws of England and Wales, in each case for the benefit of the Secured Parties pursuant to its appointment as the Collateral Agent in Section  9.01(b) and/or pursuant to any UK Security Document or any other agent or subagent or trustee acting for the benefit of the Secured Parties with the consent of the Administrative Agent, and any successor collateral agent or security trustee.

Collateral and Guarantee Requirement ” means, at any time, the requirement that (in each case, subject to, in the case of any Non-U.S. Subsidiary, the Agreed Guaranty and Security Principles):

(a)    the Administrative Agent shall have received each Collateral Document required to be delivered (i) on the Closing Date, pursuant to Section  4.01(a)(vi) , and (ii) at such time as may be designated therein, pursuant to the Collateral Documents or Sections  6.11 or 6.13 , subject, in each case, to the limitations and exceptions set forth in this Agreement, duly executed by each Loan Party party thereto;

(i)    all Obligations of the U.S. Borrower shall have been unconditionally guaranteed pursuant to the Guaranties (A) on the Closing Date, by each Restricted Subsidiary of the Parent that is a U.S. Person listed on Part A of Schedule  I hereto (other

 

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than any Excluded Subsidiary), and (B) after the Closing Date, by each subsequently acquired or organized Restricted Subsidiary of the Parent that is a direct or indirect Material U.S. Subsidiary (other than any Excluded Subsidiary) (such Persons described in the foregoing clauses (i)(A) and (i)(B), the “ U.S. Borrower Required Guarantors ”), and

(ii)    all Obligations of the English Borrower shall have been unconditionally guaranteed pursuant to the Guaranties (A) on the Closing Date, by the Parent, U.S. Midco and each Restricted Subsidiary of the Parent that is a U.S. Person listed on Part A of Schedule I hereto (other than any Excluded Subsidiary), (B) on the date that is 90 days after the Closing Date (or such later date as may be agreed to by the Administrative Agent in its sole discretion), by each Restricted Subsidiary of the Parent that is listed on Part B of Schedule I hereto (other than any Excluded Subsidiary), and (C) after the date that is 90 days after the Closing Date (or such later date as may be agreed to by the Administrative Agent in its sole discretion), by each subsequently acquired or organized Restricted Subsidiary of the Parent that is a direct or indirect Material Subsidiary (other than any Excluded Subsidiary) (such Persons described in the foregoing clauses (ii)(A), (ii)(B) and (ii)(C), the “ English Borrower Required Guarantors ” and together with the U.S. Borrower Required Guarantors, the “ Required Guarantors ”);

(b)    except to the extent otherwise provided hereunder and subject to Liens permitted by Section 7.01:

(i)    subject to the Perfection Requirements, all Secured Obligations of the U.S. Borrower and the U.S. Borrower Required Guarantors shall have been secured by a first-priority security interest in (A) on the Closing Date, (I) all of the Equity Interests in each Restricted Subsidiary that is a Material U.S. Subsidiary and directly owned by the U.S. Borrower or a U.S. Borrower Required Guarantor that is party to a Guaranty on the Closing Date, and (II) 65% of the voting Equity Interests and 100% of the non-voting Equity Interests in each Material Subsidiary that is a CFC or a CFC Holding Company and directly owned by the U.S. Borrower or a U.S. Borrower Required Guarantor that is party to a Guaranty on the Closing Date (and, for the avoidance of doubt, there shall be no pledge of the Equity Interests in respect of any Subsidiary of a CFC or CFC Holding Company), and (B) after the Closing Date, (I) all of the Equity Interests in each Restricted Subsidiary that is a Material U.S. Subsidiary and directly owned by the U.S. Borrower or a U.S. Borrower Required Guarantor and (II) 65% of the voting Equity Interests and 100% of the non-voting Equity Interests in each Material Subsidiary that is a CFC or a CFC Holding Company and directly owned by the U.S. Borrower or a U.S. Borrower Required Guarantor (and, for the avoidance of doubt, there shall be no pledge of the Equity Interests in respect of any Subsidiary of a CFC or CFC Holding Company) (other than, in the case of each of the foregoing clauses (i)(A) and (i)(B) , to the extent any of such Equity Interests constitute Excluded Assets) (such Equity Interests described in the foregoing clauses (i)(A) and (i)(B), the “ U.S. Borrower Pledged Collateral ”), and

(ii)    subject to the Perfection Requirements, all Secured Obligations of the English Borrower and the English Borrower Required Guarantors shall have been secured by a first-priority security interest in (A) on the Closing Date, all of the Equity Interests in each Restricted Subsidiary that is a Material Subsidiary and directly owned by the Parent, the English Borrower or an English Borrower Required Guarantor that is party to a Guaranty on the Closing Date, and (B) after the Closing Date, all of the Equity Interests in each Restricted Subsidiary that is a Material Subsidiary and directly owned

 

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by the Parent, the English Borrower or an English Borrower Required Guarantor (other than, in the case of each of the foregoing clauses (ii)(A) and (ii)(B), to the extent any of such Equity Interests constitute Excluded Assets) (such Equity Interests described in the foregoing clauses (ii)(A) and (ii)(B), the “ English Borrower Pledged Collateral ” and together with the U.S. Borrower Pledged Collateral, the “ Pledged Collateral ”), in each case, subject to exceptions and limitations otherwise set forth in this Agreement (for the avoidance of doubt, including the limitations and exceptions set forth below and in Section  4.01 ) and the Collateral Documents;

(c)    except to the extent otherwise provided hereunder and subject to Liens permitted by Section 7.01:

(i)    subject to the Perfection Requirements, all Secured Obligations of the U.S. Borrower and the U.S. Borrower Required Guarantors shall have been secured by a perfected-first priority security interest in (A) on the Closing Date, the Collateral of the Parent and each U.S. Borrower Required Guarantor that is party to a Guaranty on the Closing Date, and (B) after the Closing Date, the Collateral of the Parent and each U.S. Borrower Required Guarantor, in each case, subject to exceptions and limitations otherwise set forth in this Agreement (for the avoidance of doubt, including the limitations and exceptions set forth below and in Section 4.01) and the Collateral Documents, and

(ii)    subject to the Perfection Requirements, all Secured Obligations of the English Borrower and the English Borrower Required Guarantors shall have been secured by a perfected-first priority security interest in (A) on the Closing Date, the Collateral of the Parent, the English Borrower and each English Borrower Required Guarantor that is party to a Guaranty on the Closing Date, and (B) after the Closing Date, the Collateral of the Parent, the English Borrower and each English Borrower Required Guarantor, in each case, subject to exceptions and limitations otherwise set forth in this Agreement (for the avoidance of doubt, including the limitations and exceptions set forth below and in Section 4.01) and the Collateral Documents; and

(d)    the Administrative Agent shall have received (i) counterparts of a Mortgage with respect to each Material Real Property (other than Excluded Assets) owned by the Parent or a Subsidiary Guarantor and required to be delivered pursuant to Sections  6.11 and 6.13 (the “ Mortgaged Properties ”) duly executed and delivered by the applicable Loan Party, (ii) a title insurance policy for such property available in each applicable jurisdiction (the “ Mortgage Policies ”) insuring the Lien of each such Mortgage as a valid first-priority Lien on the property described therein, free of any other Liens except as permitted by Section  7.01 , together with such endorsements, coinsurance and reinsurance and in such amounts as the Administrative Agent may reasonably request, (iii) a completed Life-of-Loan Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent and each other Loan Party relating thereto) and, if any improvements on any Mortgaged Property are located within an area designated a “flood hazard area,” evidence of such flood insurance as may be required under Section  6.07 , (iv) ALTA surveys in form and substance reasonably acceptable to the Administrative Agent or such existing surveys together with no-change affidavits sufficient for the title company to remove all standard survey exceptions from the Mortgage Policies and issue the endorsements required in clause  (ii) above and (v) such legal opinions and other documents as the Administrative Agent may reasonably request with respect to any such Mortgaged Property;

 

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provided , however , that (i) notwithstanding anything to the contrary herein or in any other Loan Document, neither the foregoing definition nor any other provision in this Agreement or any other the Loan Document shall be construed to require (and the Collateral Agent shall not be authorized to require) (A) the creation or perfection of pledges of, security interests in, Mortgages on, or the obtaining of title insurance, surveys, abstracts or appraisals or taking other actions with respect to any Excluded Assets, (B) the perfection of pledges of or security interests in motor vehicles and other assets subject to certificates of title to the extent a Lien thereon cannot be perfected by the filing of a Uniform Commercial Code financing statement (or the equivalent), (C) other than with respect to any Cash Collateral Account, the perfection of pledges of or security interests in Cash and Cash Equivalents, deposit accounts, securities accounts, commodities accounts and similar accounts by means of control or any similar arrangement (including by means of control agreements), (D) with respect to Collateral of any U.S. Loan Party, the perfection of pledges of or security interests in such Collateral by any means other than (1) the filing of financing statements under the Uniform Commercial Code, (2) the filing of any necessary filings with the United States Patent and Trademark Office or United States Copyright Office, (3) the recording of Mortgages in the applicable real estate records with respect to Mortgaged Properties, (4) the delivery to the Collateral Agent to be held in its possession of all Pledged Collateral and (5) any actions required pursuant to the Jersey SIA to be executed by the U.S. Borrower, (E) the taking of any actions (other than the actions listed in clauses (D)(1) through (D)(5) above) with respect to any assets not located in the United States other than, solely with respect to assets of the English Borrower or an English Borrower Required Guarantor organized or formed in a Covered Jurisdiction, any actions required in the jurisdiction applicable to perfection of the security interests in such assets, (F) the entering into of any security document governed by the laws of a jurisdiction other than (I) in the case of any U.S. Loan Party, a jurisdiction within the United States other than, solely in the case of U.S. Midco, the English Borrower Share Pledge and, solely in the case of the U.S. Borrower, a Jersey SIA (II) in the case of the English Borrower, England and Wales and (III) in the case of an English Borrower Required Guarantor organized or formed in a Covered Jurisdiction, the jurisdiction in which such Guarantor is organized or (G) the obtaining of landlord waivers, estoppels, collateral access letters or similar third-party agreements or consents, and (ii) the Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in this Agreement and the Collateral Documents.

The Administrative Agent may grant extensions of time for the perfection of security interests in, or the delivery of the Mortgages and the obtaining of title insurance, surveys and other deliverables with respect to, particular assets and the delivery of assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) or any other compliance with the requirements of this definition where it reasonably determines, in consultation with the Parent, that perfection or compliance cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement, the Collateral Documents or any other Loan Documents.

Collateral Documents ” means, collectively, the U.S. Security Agreement, the UK Security Agreement, the English Borrower Share Pledge, the Target Share SIA, each Jersey SIA, the U.S. Intellectual Property Security Agreements, any Mortgages, collateral assignments, U.S. Security Agreement Supplements, security agreements, debentures, pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to Section  4.01(a)(vi) , 6.11 or 6.13 and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent or the Collateral Agent for the benefit of the Secured Parties.

Committed Loan Notice ” means a written notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other or (c) a continuation of LIBOR Rate Loans pursuant to Section  2.02(a) , which shall be substantially in the form of Exhibit B hereto.

 

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Commitment ” means a Multicurrency Revolving Credit Commitment, Extended Revolving Credit Commitment of a given Extension Series, Revolving Credit Commitment Increase, New Revolving Credit Commitment, Refinancing Revolving Credit Commitment of a given Refinancing Series, Initial Term A Commitment, Incremental Term Commitment, Refinancing Term Commitment of a given Refinancing Series or a Commitment in respect of Replacement Term Loans, as the context may require.

Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq. ), as amended from time to time, and any successor statute.

Common Stock ” means the common stock of the Parent, par value $0.01.

Compensation Period ” has the meaning set forth in Section  2.12(c)(ii) .

Compliance Certificate ” means a certificate substantially in the form of Exhibit C hereto.

Computation Date ” has the meaning assigned to that term in Section  2.04(a) .

Connection Income Taxes means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Consolidated EBITDA ” means, for any period, the Consolidated Net Income for such period, plus :

(a)    without duplication and, other than with respect to amounts added back under clause (a)(xiii) or (a)(xiv), to the extent deducted (and not added back or excluded) in arriving at such Consolidated Net Income, the sum of the following amounts for such period with respect to the Consolidated Parties:

(i)    Consolidated Interest Expense for such period;

(ii)    Taxes paid and any provision for Taxes based on income or profits or net worth or capital, including income, capital, federal, state, local, franchise and similar Taxes, property Taxes, foreign withholding Taxes and foreign unreimbursed value added Taxes (including penalties and interest related to any such Tax or arising from any Tax examination) paid or accrued during such period;

(iii)    amortization (including, without limitation, amortization of OID (for avoidance of doubt, including any Transaction Expenses attributable to OID, amortization of goodwill, software and other intangible assets)), depreciation and other non-cash charges for such period (except to the extent that such non-cash charges represent an accrual or reserve for potential cash charges to be taken in the future);

(iv)    (x) extraordinary charges, expenses or losses (including legal costs in connection therewith) and (y) unusual or non-recurring charges, expenses or losses (including legal costs in connection therewith), in each case in the good faith determination of the Parent;

(v)    non-cash charges, write-downs, expenses or losses (including, without limitation, non-cash charges related to mark-to-market revaluations of held bullion and non-cash costs and/or expenses incurred pursuant to any management equity plan, stock

 

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option plan, or any other stock subscription or shareholder agreement and goodwill and intangible asset impairment charges); provided that, if any such non-cash charges represent an accrual or reserve for potential cash charges to be taken in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent;

(vi)    all losses on sales of assets outside the ordinary course of business;

(vii)    charges, fees, expenses, costs, losses, accruals and/or reserves of any kind attributable to the undertaking and/or implementation of operating improvements, operating expense reductions, cost savings and other similar initiatives, transitions, openings and pre-openings, business optimization, enhanced accounting functions, restructurings and integration (including, without limitation, software development, systems upgrades, closure or consolidation of facilities, curtailments, entry into new markets, strategic initiatives and contracts, consulting fees, signing costs, retention or completion bonuses, expansion and relocation expenses, severance payments, and modifications to pension and post-retirement employee benefit plans, new systems design and implementation and startup costs);

(viii)    to the extent deducted in the calculation of Consolidated Net Income, losses resulting from (x) changes in earn-out and other similar reserves, (y) changes in the valuation of deferred consideration liabilities incurred in connection with the Gold Royalty Agreement and (z) expenses and charges in connection with the granting or payment of earn-outs;

(ix)    currency translation losses;

(x)    any charges, fees, expenses, costs, losses, accruals and/or reserves of any kind attributable to or deduction that is attributable to any non-controlling interest and/or minority interest of any third party in a Restricted Subsidiary;

(xi)    non-cash costs or expenses incurred pursuant to any management equity plan, stock option plan or any other stock subscription or shareholder agreement (including any profits interest), the granting of any stock appreciation right and/or similar arrangement (including any repricing, amendment, modification, substitution or change of any such stock option, stock appreciation right, profits interest or similar arrangement);

(xii)    accruals, payments, fees and expenses (including rationalization, legal, tax, structuring and other costs and expenses, including Transaction Expenses), or any amortization thereof, associated with the Transactions and any other acquisitions (including failed acquisitions), other Investments, dividends, Permitted Reorganizations, dispositions, or any amortization thereof, outside the ordinary course of business, and issuances or amendments, modifications, waivers, repricings, refinancings, repayments or extensions of debt or equity permitted under this Agreement, in each case whether or not consummated;

(xiii)    pro forma “run rate” cost savings, operating expense reductions, and synergies (other than revenue synergies) (net of the amount of actual amounts realized) reasonably identifiable and factually supportable (in the good faith determination of the Parent and subject to certification by a Responsible Officer of the Parent) related to (x) the Transactions and projected by the Parent in good faith to result from actions that have

 

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been taken (including prior to the Closing Date) or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Parent) within 24 months after the Closing Date and (y) any permitted asset sales, acquisitions, investments, dispositions and other specified transactions, and any operating improvements, restructurings, cost savings initiatives and other similar initiatives (including, in relation to any such foregoing initiative, the modification and renegotiation of contracts and other arrangements in connection therewith and any Permitted Reorganization) and projected by the Parent in good faith to result from actions that have been taken (including prior to completion of any specified transactions or such events or initiatives) or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Parent) within 24 months after such specified transactions, events or initiatives; pro forma “run rate” shall be the full benefit associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken calculated on a Pro Forma Basis as though such cost savings, operating expense reductions and synergies (other than revenue synergies) had been fully realized on the first day of the applicable period for the entirety of such period;

(xiv)    to the extent not included in the calculation of Consolidated Net Income, proceeds of business interruption insurance;

(xv)    charges, losses or expenses to the extent indemnified, insured, reimbursed or reimbursable or otherwise covered by a third party (to the extent expected to be received by the Parent or its Restricted Subsidiaries within one year);

(xvi)    accruals and reserves that are established or adjusted (x) within 12 months after the Closing Date and that are so required to be established or adjusted in accordance with GAAP or (y) after the closing of any acquisition or investment that are so required as a result of such acquisition or investment in accordance with GAAP, or changes as a result of the adoption or modification of accounting policies;

(xvii)    effects of adjustments (including in the property and equipment, software, goodwill, intangible assets, deferred revenue, inventory fair value step-up and debt line items thereof) resulting from the application of recapitalization accounting or acquisition accounting, as the case may be, in relation to the Transactions or any consummated acquisition or Investment;

(xviii)    letter of credit, guarantee and bankers’ acceptance fees and expenses and costs of surety bonds;

(xix)    Public Company Costs;

(xx)    add-backs, exclusions and adjustments reflected in the financial model prepared by the Parent and delivered to the Arrangers on October 27, 2017 and/or the quality of earnings report dated November 3, 2017 prepared by Ernst and Young LLP relating to the Acquired Business;

(xxi)    the cumulative effect of a change in accounting principles to the extent included in the calculation of Consolidated Net Income including, for the avoidance of doubt, a change from IFRS to GAAP accounting, whether effected through a cumulative effect adjustment, restatement or a retroactive application;

 

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(xxii)    any earn-out and contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise) incurred in connection with the Transactions or any consummated acquisition or Investment which is paid or accrued during such period and in connection with any similar acquisition or other Investment completed prior to the Closing Date and, in each case, adjustments thereof; and

(xxiii)    cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period solely to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) below for any previous period and not added back; minus

(b)    without duplication and to the extent included in arriving at such Consolidated Net Income, (i) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period) including non-cash gains as a result of last-in first-out and/or first-in first-out methods of accounting, (ii) any net gain from disposed, abandoned or discontinued operations or product lines, (iii) any extraordinary, unusual or non-recurring net gains, (iv) any net gain on sales of assets outside the ordinary course of business, (v) currency translation gains and (vi) the amount of any minority interest income attributable to minority interests or non-controlling interests of third parties in any non-wholly-owned Restricted Subsidiary, except to the extent such income is actually paid in cash to any Consolidated Party by dividend or other distribution during such period.

For the avoidance of doubt, Consolidated EBITDA shall be calculated, including pro forma adjustments, in accordance with Section  1.09 .

Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated EBITDA for any Test Period that includes any of the fiscal quarters ended March 31, 2017, June 30, 2017, September 30, 2017 and December 31, 2017, respectively, Consolidated EBITDA for such fiscal quarters shall be deemed to be $32,075,000, $34,921,000, $33,967,000 and $30,655,000, respectively; provided that further adjustments may be made on a Pro Forma Basis to the foregoing amounts to the extent provided in Section  1.09 .

Consolidated Interest Expense ” means, with respect to any Person for any period, the sum of (without duplication):

(a)    consolidated total interest expense of such Person and its Restricted Subsidiaries for such period (i) including (A) any capitalized interest, (B) any premium or fees paid to obtain payment, financial assurance or similar bonds, (C) the interest component of any payment under any Capital Lease (regardless of whether accounted for as interest expense under GAAP), (D) any commission, discount and/or other fee or charge owed with respect to any letter of credit and/or bankers’ acceptance, (E) any fee and/or expense paid to the Administrative Agent in connection with its services under the Loan Documents, or any other bank, administrative agency (or trustee) and/or financing fees and (F) any cost associated with any surety bond in connection with financing activities (whether amortized or immediately expensed) but (ii) excluding amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses and other amounts of non-cash interest other than non-cash interest expense resulting solely from amortization of debt issuance cost/OID of debt (other than the Facilities and refinancings thereof) issued at less than par; plus

 

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(b)    any cash dividend paid or payable in respect of Disqualified Capital Stock during such period other than to such Person or any Loan Party; plus

(c)    any net payments pursuant to any Swap Contract and/or other derivative financial instrument issued by such Person for the benefit of such Person or its Restricted Subsidiaries, in each case determined on a consolidated basis for such period; minus

(d)    consolidated total cash interest income received in such period (other than interest income on customer deposits or restricted cash).

For purposes of this definition, interest in respect of any Capital Lease shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capital Lease in accordance with GAAP.

Consolidated Net Income ” means, for any period, the net income (or loss) of the Consolidated Parties for such period, determined on a consolidated basis, without duplication, in accordance with GAAP; provided that in calculating Consolidated Net Income of the Consolidated Parties for any period, there shall be excluded (without duplication):

(a)    the net income (or loss) of any Unrestricted Subsidiary and any Person in which a Person or Persons other than the Parent and its Restricted Subsidiaries has an Equity Interest or Equity Interests to the extent of such Equity Interests held by Persons other than the Parent and its Restricted Subsidiaries in such Person, except to the extent such net income is actually paid in cash to any Consolidated Party by dividend or other distribution during such period;

(b)    except for determinations expressly required to be made on a Pro Forma Basis, the net income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary or all or substantially all of the property or assets of such Person are acquired by a Restricted Subsidiary;

(c)    any net after-tax extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses;

(d)    the net income for such period shall not include the cumulative effect of a change in accounting principles during such period, whether effected through a cumulative effect adjustment or a retroactive application in each case in accordance with GAAP;

(e)    effects of adjustments (including the effects of such adjustments pushed down to the Parent’s Restricted Subsidiaries) in such Person’s consolidated financial statements pursuant to GAAP (including in the property and equipment, software, goodwill, intangible assets, deferred revenue and debt line items thereof) resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to any consummated acquisition or the amortization or write-off of any amounts thereof, net of taxes;

(f)    any net after-tax income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed or discontinued operations;

(g)    any net after-tax gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or the sale or other disposition of any Equity Interests of any Person other than in the ordinary course of business, as determined in good faith by the Parent;

 

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(h)    any impairment charge or asset write-off, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case pursuant to GAAP, the amortization of intangibles arising pursuant to GAAP and the amortization of Capitalized Software Expenditures;

(i)    any impairment charge or write-off or amortization made of any deferred financing cost and/or premium paid or other charge or loss, in each case attributable to the early extinguishment of Indebtedness (and the termination of any associated Swap Contract);

(j)    (i) any realized or unrealized non-cash gain or loss in respect of (x) any obligation under any Swap Contract not entered into for speculative purposes as determined in accordance with GAAP and/or (y) any other derivative instrument pursuant to, in the case of this clause (y), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives and Hedging, and (ii) any realized or unrealized foreign currency exchange gain or loss (including any currency re-measurement of Indebtedness, any net gain or loss resulting from Swap Contracts for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction or any other currency-related risk); and

(k)    any non-cash (for such period and all other periods) compensation charge or expense, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights or equity incentive programs, and any cash charges associated with the rollover, acceleration or payout of Equity Interests by, or to, management or other holders of Equity Interests of the Parent in connection with the Transactions.

For the avoidance of doubt, Consolidated Net Income shall be calculated, including pro forma adjustments, in accordance with Section  1.09 .

Consolidated Parties ” means the Parent and its Restricted Subsidiaries.

Consolidated Total Debt ” means, as of any date of determination, the aggregate principal amount of Indebtedness of the Consolidated Parties outstanding on such date, in an amount that would be reflected on the consolidated balance sheet of the Parent with respect to the Consolidated Parties as of such date in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with the Transactions or any Permitted Acquisition or any other acquisition permitted under this Agreement under GAAP) consisting only of (i) Indebtedness for borrowed money, (ii) unreimbursed obligations in respect of any drawn Letter of Credit or other drawn letter of credit (it being understood that any borrowing, whether automatic or otherwise, including any L/C Borrowings, to fund such reimbursement shall be counted); provided that any unreimbursed obligations in respect of any such drawn Letter of Credit or other drawn letter of credit shall not be included as Consolidated Total Debt until one (1) Business Day after such amount is due and payable by any Borrower or any Restricted Subsidiary, (iii) obligations in respect of Capitalized Leases (other than any Real Property lease that is required to be capitalized in accordance with GAAP) and other purchase money Indebtedness, (iv) debt obligations evidenced by bonds, debentures, promissory notes or other similar instruments and (v) Guarantees by the Parent or any Restricted Subsidiary of any of the foregoing; provided that “Consolidated Total Debt” shall be (a) adjusted to reflect the effect (in the good faith determination of the Parent) of any Swap Contract relating to any such Indebtedness, calculated on a mark-to-market basis and (b) for the avoidance of doubt, calculated (A) excluding (1) royalty or similar payments made in the ordinary course of business in respect of licenses, (2) accruals for payroll and other non-interest bearing liabilities incurred in the ordinary course of business, (3) intercompany Indebtedness

 

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among the Parent and its Restricted Subsidiaries and (4) obligations in respect of the Closing Date Preferred Shares and (B) based on the initial stated principal amount of any Indebtedness that is issued at a discount to its initial stated principal amount without giving effect to any such discounts.

Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

Control ” has the meaning set forth in the definition of “Affiliate”.

Covered Jurisdictions ” means each of Canada, England and Wales, Germany, Ireland, Jersey, Luxembourg and the Netherlands, as applicable. In addition, from time to time after the Closing Date, the Parent may request (by written notice to the Administrative Agent) that one or more additional jurisdictions be added to the list of Covered Jurisdictions. In such event, such jurisdictions shall be added to (and thereafter form part of) the list of Covered Jurisdictions so long as, in each case, (x) the Guarantees and Collateral that would be provided by a Restricted Subsidiary of the Parent in the respective jurisdiction, after taking into account the Agreed Guaranty and Security Principles, shall provide credit support that is not materially less favorable to the Secured Parties than the credit support that such Secured Parties then receive from Restricted Subsidiaries in existing Covered Jurisdictions taken as a whole (as determined by the Parent and the Administrative Agent, each acting reasonably) or (y) such respective jurisdiction is otherwise reasonably acceptable to the Administrative Agent.

Credit Agreement Refinancing Indebtedness ” means any (a) Permitted Junior Priority Refinancing Debt, (b) Permitted Unsecured Refinancing Debt, (c) other Indebtedness incurred pursuant to a Refinancing Amendment or (d) Replacement Term Loans, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or part, existing Loans (or, if applicable, unused Revolving Credit Commitments), or any then-existing Credit Agreement Refinancing Indebtedness of the applicable Borrower (or, in the case of the Parent, any such Indebtedness of the English Borrower) (the “ Refinanced Debt ”); provided that (i) such Credit Agreement Refinancing Indebtedness shall have a maturity date that is no earlier than the Latest Maturity Date (or (A) in the case of Permitted Junior Priority Refinancing Debt or Permitted Unsecured Refinancing Debt, the date that is 91 days after the Latest Maturity Date and (B) in the case of any Revolving Credit Facility, the latest maturity date of any then-existing Revolving Credit Facility) at the time of incurrence and, in the case of Credit Agreement Refinancing Indebtedness consisting of loans that are not revolving Indebtedness, a Weighted Average Life to Maturity equal to or greater than that of the Refinanced Debt (after giving effect to any amortization thereof, but not any prepayments thereof, prior to the time of such Refinancing) as of the date of determination, (ii) the covenants, events of default and guarantees of any such Indebtedness (excluding, for the avoidance of doubt, interest rates (including through fixed interest rates), interest margins, rate floors, fees, funding discounts, OID and optional prepayment or redemption premiums and terms) shall be identical to, or less favorable to the lenders thereunder than, those applicable to the Refinanced Debt (other than covenants or other provisions applicable only to periods after the Latest Maturity Date (or, in the case of Permitted Junior Priority Refinancing Debt or Permitted Unsecured Refinancing Debt, the date that is 91 days after the Latest Maturity Date) at the time of incurrence and terms that are contemporaneously added for the benefit of the existing Lenders), (iii) such Indebtedness shall not have a greater principal amount than the principal amount of the Refinanced Debt plus accrued interest, fees and premiums (including any tender premium and prepayment premiums) and penalties (if any) thereon and fees, expenses, OID and upfront fees incurred in connection with such Refinancing, (iv) such Refinanced Debt shall be repaid, repurchased, retired, defeased or satisfied and discharged, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, substantially concurrently with the date such Credit Agreement Refinancing Indebtedness is issued,

 

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incurred or obtained with the Net Proceeds received from the incurrence or issuance of such Indebtedness and any corresponding commitments shall immediately terminate, (v) such Credit Agreement Refinancing Indebtedness shall not require any mandatory repayment, redemption, repurchase or defeasance (other than in the case of notes or debentures, customary “AHYDO” payments, customary change of control, asset sale event or casualty or condemnation event offers and customary acceleration any time after an event of default) prior to the Latest Maturity Date (or, in the case of Permitted Junior Priority Refinancing Debt or Permitted Unsecured Refinancing Debt, the date that is 91 days after the Latest Maturity Date) at the time of such incurrence, (vi) if the Refinanced Debt is subordinated in right of payment to, or to the Liens securing, the Obligations, then any Credit Agreement Refinancing Indebtedness shall be subordinated in right of payment to, or to the Liens securing, the Obligations, as applicable, pursuant to a Customary Intercreditor Agreement and, if subordinated in right of payment, on terms reasonably satisfactory to the Administrative Agent, and (vii) with respect to Credit Agreement Refinancing Indebtedness consisting of a revolving facility, (A) such Credit Agreement Refinancing Indebtedness shall have no mandatory scheduled commitment reductions prior to the maturity date of any existing Revolving Credit Facility (or, if at such time no Revolving Credit Facility exists, the Latest Maturity Date at the time of incurrence), (B) any borrowings, repayments, prepayments and commitment reductions thereunder shall be ratable among such facility, any Revolving Credit Facility and any other such revolving facility and (C) there shall not be more than two revolving credit facilities among the revolving facilities constituting Credit Agreement Refinancing Indebtedness and any Revolving Credit Facility.

Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

Customary Intercreditor Agreement ” means (a) to the extent executed in connection with the incurrence of Indebtedness secured by Liens on the Collateral intended to rank equal in priority with the Liens on the Collateral securing the Obligations, a customary intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent and the Parent, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank equal in priority with the Liens on the Collateral securing the Obligations and (b) to the extent executed in connection with the incurrence of Indebtedness secured by Liens on the Collateral intended to rank junior to the Liens on the Collateral securing the Obligations, a customary intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent and the Parent, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior to the Lien on the Collateral securing the Obligations.

Daily Rate ” means, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternative Currency Alternate Rate.

DAM Exchange ” means the mechanism solely among the Lenders and the Administrative Agent for the allocation and exchange of interests in the Facilities and collections thereunder established under the Re-Allocation Agreement.

Debtor Relief Laws ” means the U.S. Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Declined Proceeds ” has the meaning set forth in Section  2.05(b)(vii) .

 

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Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, without cure or waiver hereunder, would be an Event of Default.

Default Rate ” means an interest rate equal to (i) with respect to overdue principal amounts of any Loans, (a) the interest rate applicable to such Loans pursuant to Section 2.08(a), plus (b) 2.00% per annum , and/or (ii) with respect to any other overdue amounts, (a) the interest rate applicable to ABR Loans pursuant to Section 2.08(a), plus (b) 2.00% per annum , in each case, to the fullest extent permitted by applicable Laws.

Defaulting Lender ” means, subject to Section  2.17(b) , any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of L/C Obligations, within one (1) Business Day of the date required to be funded by it hereunder, unless such Lender notifies the Administrative Agent and the Parent in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable Default, shall be specifically identified in such writing) has not been satisfied, (b) has notified the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable Default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations, (d) has failed, within two (2) Business Days after request by the Administrative Agent, to pay any amounts owing to the Administrative Agent or the other Lenders, or (e) has, or has a direct or indirect parent company that has, after the Closing Date, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) become the subject of a Bail-in Action or (iv) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of (x) the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority or (y) in the case of a solvent Person, the precautionary appointment of an administrator, guardian, custodian or other similar official by a Governmental Authority under or based on the Law of the country where such Person is subject to home jurisdiction supervision if any applicable Law requires that such appointment not be publicly disclosed, in any such case, where such action does not result in or provide such Person with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any of clauses (a)  through (e) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section  2.17(b) ) upon delivery of written notice of such determination to the Borrower, each L/C Issuer and each Lender.

Designated Person ” means a person or entity:

(a)    listed in the annex to, or otherwise subject to the provisions of, the Executive Order;

 

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(b)    named as a “Specially Designated National and Blocked Person” (“ SDN ”) on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list (the “ SDN List ”); or

(c)    in which an entity on the SDN List has 50% or greater ownership interest or that is otherwise controlled by an SDN.

Disposition ” or “ Dispose ” means the sale, transfer, license tantamount to a sale, lease or other disposition (including any sale-leaseback transaction and any sale or issuance of Equity Interests (other than directors’ qualifying shares or other shares required by applicable Law) in a Restricted Subsidiary) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

Disqualified Equity Interest ” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests and cash in lieu of fractional shares), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control, asset sale or similar event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale or similar event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the termination of all outstanding Letters of Credit (unless the Effective Amount of the L/C Obligations related thereto has been Cash Collateralized, back-stopped by a letter of credit reasonably satisfactory to the applicable L/C Issuer or deemed reissued under another agreement reasonably acceptable to the applicable L/C Issuer)), (b) is redeemable at the option of the holder thereof (other than (i) solely for Qualified Equity Interests and cash in lieu of fractional shares or (ii) as a result of a change of control, asset sale or similar event so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale or similar event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the termination of all outstanding Letters of Credit (unless the Effective Amount of the L/C Obligations related thereto has been Cash Collateralized, back-stopped by a letter of credit reasonably satisfactory to the applicable L/C Issuer or deemed reissued under another agreement reasonably acceptable to the applicable L/C Issuer)), in whole or in part, (c) provides for the scheduled payments of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Latest Maturity Date at the time of issuance of such Equity Interests; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of any Consolidated Party, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by the Parent or any of its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

Disqualified Lenders ” means (a) those persons that are direct competitors of the Parent, the English Borrower and/or their respective Subsidiaries to the extent identified by the Parent or the English Borrower to the Administrative Agent by name in writing from time to time, (b) those banks, financial institutions and other Persons separately identified by the Parent to the Administrative Agent in writing prior to the Closing Date (the list of such banks, financial institutions and other Persons, the “ DQ List ”) or (c) in the case of clauses (a) or (b), any of their Affiliates, other than Bona Fide Debt Funds, that are clearly identifiable as affiliates solely on the basis of their name ( provided that the Administrative Agent shall have no obligation to carry out due diligence in order to identify such Affiliates); provided, further , that no such identification after the date hereof pursuant to clauses (a) and (b) shall apply retroactively to disqualify any Person that has previously acquired an assignment or participation interest in the Loans to the extent such Person was not a Disqualified Lender at the time of the applicable assignment or

 

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participation, as the case may be. The Administrative Agent shall not post or otherwise distribute or make available the DQ List to any Persons; provided, however , that the Administrative Agent may make the DQ List available to any Lender on a confidential basis upon request so long as such Lender agrees to keep the DQ List confidential.

EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a)  of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a)  or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Effective Amount ” means (a) with respect to any Loans on any date, the aggregate outstanding principal U.S. Dollar Equivalent amount thereof after giving effect to any Borrowings and prepayments or repayments of Loans occurring on such date (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) and (b) with respect to any outstanding L/C Obligations on any date, the U.S. Dollar Equivalent amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under outstanding Letters of Credit taking effect on such date.

Eligible Assignee ” has the meaning set forth in Section  10.07(a)(i) .

EMU Legislation ” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

English Borrower ” has the meaning set forth in the preamble to this Agreement.

English Borrower Pledged Collateral ” has the meaning set forth in the definition of “Collateral and Guarantee Requirement”.

English Borrower Required Guarantor ” has the meaning set forth in the definition of “Collateral and Guarantee Requirement”.

English Borrower Share Pledge ” means that certain English law pledge agreement, substantially in the form of Exhibit F-2 attached hereto.

Environment ” means the indoor and outdoor environment, including indoor air, ambient air, surface water, groundwater, land surface, subsurface strata or sediment, and natural resources, such as wetlands, flora and fauna, and any other environmental media.

 

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Environmental Laws ” means any applicable Law relating to the prevention of pollution or the protection of the Environment and natural resources, and the protection of health and safety as it relates to exposure to Hazardous Materials, including any applicable provisions of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. , the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq. , the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. , the Clean Water Act, 33 U.S.C. § 1251 et seq. , the Clean Air Act, 42 U.S.C. § 7401 et seq. , the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. , the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. , and the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq. , and all analogous state or local statutes, and the regulations promulgated pursuant thereto.

Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of investigation and remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) noncompliance with any Environmental Law including any failure to obtain, maintain or comply with any Environmental Permit, (b) the generation, use, handling, transportation, storage or treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract or agreement to the extent pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Environmental Permit ” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

Equity Interests ” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing; provided that any agreement or instrument evidencing Indebtedness convertible or exchangeable for Equity Interests shall not be deemed to be Equity Interests unless and until such Indebtedness is so converted or exchanged for Equity Interests.

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

ERISA Affiliate ” means any trade or business (whether or not incorporated) that is under common control with a Loan Party or any Restricted Subsidiary within the meaning of Section 414(b) or (c) of the Code or Section 4001 of ERISA (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by a Loan Party, any Restricted Subsidiary or any ERISA Affiliate (to the extent such event would be reasonably likely to result in liability to a Loan Party) from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) by a Loan Party, any Restricted Subsidiary or any ERISA Affiliate (to the extent such event would be reasonably likely to result in liability to a Loan Party) from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent (within the meaning of Section 4245 of ERISA) or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (d) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (e) the filing of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (f) an

 

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event or condition which constitutes grounds under Section 4042 of ERISA for, and that would reasonably be expected to result in, the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) with respect to a Pension Plan, the failure to satisfy the minimum funding standard of Sections 412 or 430 of the Code or Sections 302 or 303 of ERISA, whether or not waived, or the filing, pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an application for the waiver of the minimum funding standard with respect to any Pension Plan; (h) a failure by a Loan Party, any Restricted Subsidiary or any ERISA Affiliate (to the extent such event would be reasonably likely to result in liability to a Loan Party) to make a required contribution to a Multiemployer Plan; (i) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which would result in material liability to a Loan Party or any Restricted Subsidiary; (j) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due under Section 4007 of ERISA, upon a Loan Party, any Restricted Subsidiary or any ERISA Affiliate (to the extent such event would be reasonably likely to result in liability to a Loan Party); (k) the imposition of a Lien pursuant to Section 430(k) of the Code or pursuant to ERISA with respect to any Pension Plan; or (l) any condition that constitutes grounds for the revocation by the IRS of the qualified or Tax-exempt status of any Plan or any trust thereunder that is intended to qualify for Tax-exempt status under Section 401 or 501 of the Code.

EU Bail-In Legislation Schedule ” means the document described as such and published by the Loan Market Association (or any successor person) from time to time.

European Insolvency Regulation ” means Council Regulation (EC) No. 1346/2000 of May 29, 2000 on Insolvency Proceedings, as amended from time to time.

Euro ” means the lawful currency adopted by or which is adopted by Participating Member States of the European Union.

Event of Default ” has the meaning set forth in Section  8.01 .

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

Exchange Rate ” means, on any day, with respect to conversions between U.S. Dollars and any other currency, the Spot Rate; provided that if at the time of any such determination, for any reason, no such Spot Rate is being quoted, the Administrative Agent may use any reasonable method it deems applicable to determine such rate, and such determination shall be conclusive absent manifest error. For purposes of determining the Exchange Rate in connection with an Alternative Currency Loan such Exchange Rate shall be determined as of the Exchange Rate Determination Date for such Borrowing. The Administrative Agent shall provide Borrowers with the then current Exchange Rate from time to time upon any Borrower’s request therefor.

Exchange Rate Determination Date ” means for purposes of the determination of the Exchange Rate of any stated amount on any Business Day in relation to any Alternative Currency Loan, the date which is two (2) Business Days prior to such LIBOR Rate borrowing.

Excluded Assets ” means (X) in the case of any U.S. Loan Party, (i) any fee owned real property (other than Material Real Properties) and any leasehold rights and interests in real property, (ii) motor vehicles, airplanes and other assets subject to certificates of title to the extent perfection of the security interest in such assets cannot be accomplished by the filing of a UCC financing statement (or equivalent), (iii) any lease, license or other agreement or any property subject to a purchase money security interest, capital lease obligation or similar arrangement, in each case to the extent permitted under the Loan Documents, to the extent that a grant of a security interest therein would violate, invalidate or terminate

 

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such lease, license or agreement, purchase money, capital lease or a similar arrangement or create a right of termination in favor of any other party thereto (other than any Loan Party or any of their respective Subsidiaries), in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable Law and any consents that have otherwise been obtained, but excluding the proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC or other applicable Law notwithstanding such prohibition, provided that the limitation on pledges and security interests in this clause (iii)  shall (a) not apply to the extent any such limitation is contained in any agreement that relates to Credit Agreement Refinancing Indebtedness and (b) only apply to the extent that such limitation is otherwise permitted under Section  7.09 , (iv) any lease, license, permit, property or agreement to the extent that a grant of a security interest therein is prohibited by applicable Law (including restrictions in respect of margin stock and financial assistance, fraudulent conveyance, preference, thin capitalization or other similar laws or regulations), or any governmental licenses or state or local franchises, charters and authorizations and any other property or assets (other than to the extent such prohibition is rendered ineffective under the UCC or other applicable Law notwithstanding such prohibition), or requires governmental or third party consents, approvals, licenses or authorization required pursuant to applicable Law that have not been obtained, (v) Margin Stock and Equity Interests in any Subsidiary other than wholly-owned Subsidiaries only to the extent that (a) the organizational documents or other agreements with other equity holders of such non-wholly-owned Subsidiaries do not permit the pledge of such Equity Interests (so long as such prohibition was not entered into in contemplation of the applicable Loan Party becoming a Loan Party or at the time the applicable Loan Party becomes a Loan Party) or (b) the pledge of such Equity Interests (including any exercise of remedies) would result in a change of control, repurchase obligation or other materially adverse consequences to any of the Loan Parties or such non-wholly-owned Subsidiary, in each case of clauses (a)  and (b) after giving effect to applicable anti-assignment provisions of the UCC or other applicable Law, (vi) any property or assets to the extent that the creation or perfection of pledges of, or security interests in, such property or assets would reasonably be expected to result in material adverse Tax consequences to any Loan Party or any Subsidiary of any Loan Party, as reasonably determined by the Parent in consultation with the Administrative Agent, (vii) any property subject to a Lien permitted by Section  7.01(s) , (u) or (z) (to the extent relating to a Lien originally permitted pursuant to Section  7.01(s) or (u) ) to the extent that the granting of a security interest in such property would be prohibited under the terms of the Indebtedness secured thereby after giving effect to the applicable anti-assignment provisions of the UCC, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition or restriction, (viii) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law, (ix) particular assets if and for so long as the Administrative Agent and the Parent reasonably determine that the costs of creating or perfecting such pledges or security interests in such assets or obtaining title insurance, surveys or flood insurance (if necessary), abstracts or appraisals in respect of such assets required by the Administrative Agent are excessive in relation to the practical benefits to be obtained by the Lenders therefrom, (x) assets (including Equity Interests and debt) owned by Excluded Subsidiaries, (xi) 35% of the voting Equity Interests of any first-tier wholly-owned CFC or CFC Holding Company, (xii) Equity Interests of Excluded Pledged Subsidiaries, (xiii) any asset or right under any contract, in each case to the extent that the Collateral Agent may not validly possess a security interest therein under applicable Law or the creation of a security interest in such property would require consent, approval, license or authority from a Person other than the Parent or any of its Subsidiaries or Affiliates, including any Governmental Authority but excluding any other Person if such consent requirement is not permitted under Section  7.09 , that has not otherwise been obtained, except, in each case, to the extent such requirement is rendered inapplicable under the UCC or other Law, including, to the extent applicable, any contract rights of any Restricted Subsidiary of the Parent acquired or created after the Closing Date that is (i) an “investment adviser,” within the meaning of the Investment Advisers

 

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Act that is registered or required to be registered thereunder; and/or (ii) a “broker” or “dealer” within the meaning of the Exchange Act that is registered or required to be registered under the Exchange Act, (xiv) commercial tort claims with a value (as reasonably determined by the Parent) of less than $10,000,000, (xv) letter of credit rights, except to the extent constituting support obligations for other Collateral as to which perfection of the security interest in such other Collateral is accomplished solely by the filing of a UCC financing statement and (xvi) (A) payroll, healthcare and other employee wage and benefit accounts, (B) Tax accounts, including, without limitation, sales Tax accounts, (C) escrow, defeasance and redemption accounts and (D) fiduciary or trust accounts and, in the case of clauses (A)  through (D) , the funds or other property held in or maintained in any such account; provided, however, that Excluded Assets shall not include any Proceeds, substitutions or replacements of any Excluded Assets referred to in clauses (i)  through (xvi) (unless such Proceeds, substitutions or replacements would independently constitute Excluded Assets referred to in clauses (i)  through (xvi) ) and, (Y) in the case of the English Borrower and any non-U.S. Loan Party, assets typically excluded by market practice in the relevant jurisdiction for comparable transactions in accordance with the Agreed Guaranty and Security Principles ( provided that such Collateral shall not include (i) any Equity Interests of GBS and (ii) any assets of GBS)).

Excluded Contributions ” means the net cash proceeds received by the Parent from: (i) contributions to its common equity capital, (ii) dividends, distributions, fees and other payments (A) from Unrestricted Subsidiaries and any of their Subsidiaries, (B) received in respect of any minority investments and (C) from any joint ventures that are not Restricted Subsidiaries; and/or (iii) the sale (other than to a Restricted Subsidiary of the Parent) of Equity Interests (other than Disqualified Equity Interests) of the Parent.

Excluded Pledged Subsidiary ” means (a) any Subsidiary for which the pledge of its Equity Interests is prohibited by applicable Law or for which governmental (including regulatory) consent, approval, license or authorization would be required unless such consent, approval, license or authorization has been received and (b) any Unrestricted Subsidiary.

Excluded Subsidiary ” means (a) any Subsidiary that is prohibited by applicable Law (including financial assistance, fraudulent conveyance, preference, capitalization or other similar laws and regulations) or Contractual Obligation existing at the time of acquisition thereof after the Closing Date (but only if the contractual prohibition is not created in contemplation of the Closing Date or such acquisition and, in any event, only for so long as such prohibition continues to exist), in each case, from guaranteeing the Obligations or if guaranteeing the Obligations would require governmental (including regulatory) consent, approval, license or authorization that has not otherwise been obtained, (b) any Unrestricted Subsidiaries, (c) any Non-U.S. Subsidiary that is a CFC, (d) any direct or indirect Subsidiary substantially all the assets of which consist of the Equity Interests or debt instruments of one or more Non-U.S. Subsidiaries that are CFCs (“ CFC Holding Company ”), (e) any direct or indirect U.S. Subsidiary of a Non-U.S. Subsidiary that is a CFC, (f) each Subsidiary of the Parent listed on Part C of Schedule  I hereto and any other Subsidiary of the Parent that is registered as a broker-dealer under the Exchange Act or registered, as such, to conduct financial services business for the purposes of the Financial Services and Market Act 2000 or the Financial Services (Jersey) Law 1998, (g) any captive insurance Subsidiaries, (h) any not-for-profit Subsidiaries, (i) any Subsidiary that is a special purpose entity reasonably satisfactory to the Administrative Agent, (j) any Immaterial Subsidiary, (k) in the case of any Secured Hedge Agreement, any Subsidiary that is not an “Eligible Contract Participant” as defined in the Commodity Exchange Act (after giving effect to any customary “keepwell” provision), (l) any joint ventures, (m) any Subsidiary where the provision of the Subsidiary Guarantee by such Subsidiary would result in material adverse tax consequences (including in relation to interest deductibility, stamp duty and the possibility to form a fiscal unity) to any Loan Party or any of their respective Restricted Subsidiaries, (n) any broker-dealer Subsidiary acquired or formed after the Closing Date, (o) any Subsidiary acquired

 

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pursuant to a Permitted Acquisition or other permitted Investment that is subject to Indebtedness permitted to be assumed pursuant to this Agreement (and which is not incurred in contemplation of such Permitted Acquisition or other permitted Investment) and any Subsidiary thereof that guarantees such Indebtedness, in each case, to the extent, and so long as, the documentation relating to such Indebtedness prohibits such Subsidiary from becoming a Guarantor, (p) GBS and (q) any other Restricted Subsidiary to the extent that the burden or cost of obtaining a guarantee of the Obligations is excessive in comparison to the practical benefit to the Lenders afforded thereby, as reasonably determined by the Administrative Agent and the Parent.

Excluded Swap Obligation ” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act (a “ Swap Obligation ”), if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest would otherwise have become effective with respect to such related Swap Obligation but for such Guarantor’s failure to constitute an “eligible contract participant” at such time. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof).

Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient:

(a)    Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes,

(b)    in the case of a Lender, withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (1) such Lender acquires such interest in the Loan or Commitment pursuant to an assignment (other than pursuant to an assignment under Section  3.07(a)(iii) ) or (2) such Lender changes its lending office, except in each case to the extent that (A), pursuant to Section  3.01 , amounts with respect to such Taxes would have been payable to such Lender’s assignor if the relevant assignment had not occurred or (as applicable) to such Lender if the relevant change in its in lending office had not occurred, or (B) that Lender is a UK Treaty Lender which has confirmed its scheme reference number and jurisdiction of tax residence to the English Borrower and indicated that it wishes the UK DTTP Scheme to apply to this Agreement, HMRC has not yet responded to a UK DTTP Filing made in respect of that Lender in relation to this Agreement (or such a UK DTTP Filing has not yet been made) and such Taxes would not be imposed if HMRC had given the relevant Loan Party authority to make payments to that UK Treaty Lender without a UK Tax Deduction,

 

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(c)    any United Kingdom taxes required to be deducted or withheld (a “ UK Tax Deduction ”) from a payment of interest under any Loan Document in respect of any Loan to the English Borrower if on the date on which the payment falls due:

(i)    the payment could have been made to the relevant Lender without a UK Tax Deduction if it was a UK Qualifying Lender, but on that date that Lender is not or has ceased to be a UK Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority; or

(ii)    the relevant Lender is a UK Qualifying Lender solely by virtue of sub-paragraph (b)  of the definition of UK Qualifying Lender and that relevant Lender has not given a UK Tax Confirmation to the English Borrower and the payment could have been made to the relevant Lender without a UK Tax Deduction if that Lender had given a UK Tax Confirmation to the English Borrower, on the basis that the UK Tax Confirmation would have enabled the relevant Loan Party to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the UK ITA; or

(iii)    the relevant Lender is a UK Qualifying Lender solely under sub-paragraph (b)  of the definition of UK Qualifying Lender and an officer of HMRC has given (and not revoked) a direction (a “ UK Direction ”) under section 931 of the UK ITA which relates to that payment and that Lender has received from the relevant Loan Party a certified copy of that UK Direction and the payment could have been made to the Lender without any UK Tax Deduction if that UK Direction had not been made, or

(d)    Taxes attributable to such Recipient’s failure to comply with Section  3.01(d) ,

(e)    the bank levy as set out in the Finance Act 2011 of the United Kingdom, and/or

(f)    any withholding Taxes imposed under FATCA.

Executive Order ” means Executive Order 13224 signed on September 23, 2001.

Existing Revolver Tranche ” has the meaning set forth in Section  2.16(b) .

Existing Term Loan Tranche ” has the meaning set forth in Section  2.16(a) .

Extended Revolving Credit Commitments ” has the meaning set forth in Section  2.16(b) .

Extending Revolving Credit Lender ” has the meaning set forth in Section  2.16(c) .

Extended Revolving Credit Loans ” means one or more Classes of Revolving Credit Loans that result from an Extension Amendment.

Extended Term Loans ” has the meaning set forth in Section  2.16(a) .

Extending Term Lender ” has the meaning set forth in Section  2.16(c) .

Extension ” means the establishment of an Extension Series by amending a Loan pursuant to the terms of Section  2.16 and the applicable Extension Amendment.

 

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Extension Amendment ” has the meaning set forth in Section  2.16(d) .

Extension Election ” has the meaning set forth in Section  2.16(c) .

Extension Request ” means any Term Loan Extension Request or a Revolver Extension Request, as the case may be.

Extension Series ” means any Term Loan Extension Series or a Revolver Extension Series, as the case may be.

Facility ” means the Revolving Credit Facility, a given Extension Series of Extended Revolving Credit Commitments, a given Refinancing Series of Refinancing Revolving Credit Loans, the Term Facility, a given Extension Series of Extended Term Loans, a given Class of Incremental Term Loans, a given Refinancing Series of Refinancing Term Loans or a Series of Replacement Term Loans, as the context may require.

FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

Federal Funds Effective Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions, as published by the Federal Reserve Bank on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

Fee Letter ” shall mean that certain Amended and Restated Fee Letter, dated as of December 15, 2017, by and among the English Borrower, the Administrative Agent, Bank of America, N.A., and the Arrangers, as amended, restated and amended and restated, supplemented or otherwise modified.

Finance Party ” has the meaning assigned to that term in Section  3.01(h) (i) .

FIRREA ” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.

Flood Insurance Laws ” means, collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statue thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto and any and all official rulings and interpretation thereunder or thereof.

“Foreign Lender” means (a) if the applicable Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the applicable Borrower is resident for tax purposes.

 

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“Foreign Pension Plan” means a registered pension plan which is subject to applicable pension legislation other than ERISA or the Code, which a Loan Party or Restricted Subsidiary sponsors or maintains, or to which it makes or is obligated to make contributions.

“Foreign Plan” means each Foreign Pension Plan, deferred compensation or other retirement or superannuation plan, fund, program, agreement, commitment or arrangement (as amended, waived, supplemented, renewed or otherwise modified from time to time) whether oral or written, funded or unfunded, sponsored, established, maintained or contributed to, or required to be contributed to, or with respect to which any liability is borne, outside the United States of America, by any Loan Party or Restricted Subsidiary, other than any such plan, fund, program, agreement or arrangement sponsored by a Governmental Authority.

Foreign Plan Event ” has the meaning set forth in Section  5.10 (d) .

Fronting Exposure ” means, at any time there is a Defaulting Lender, such Defaulting Lender’s Multicurrency Revolving Credit Pro Rata Share of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

GAAP ” means generally accepted accounting principles in the United States of America, as in effect from time to time; provided , however , that, subject to Section  1.03 , if the Parent notifies the Administrative Agent that it requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Parent that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

GBS ” means Gold Bullion Securities Limited, a public limited liability par value company incorporated in Jersey with registered number 87322.

Gold Royalty Agreement ” means that certain Gold Royalty Agreement dated as of the Closing Date by and among Electra Target Holdco Limited, the English Borrower and the Seller (as in effect on the Closing Date, together with any subsequent successor(s) to, or replacement(s) of, such agreement, so long as such successor or replacement agreement(s) only contains substantively similar obligations taken as a whole or other obligations not less favorable in any material respect, taken as a whole, to the Loan Parties).

Governmental Authority ” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national body exercising such powers or functions, such as the European Union or the European Central Bank).

 

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Granting Lender ” has the meaning set forth in Section  10.07(h) .

Guarantee ” means, as to any Person, without duplication, any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness by another Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness of the payment or performance of such Indebtedness, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

Guaranties ” means the Parent Guarantee and/or the Subsidiary Guarantee, as the context may require and “ Guaranty ” shall be construed accordingly.

Guarantor Coverage Requirement ” means, as of any date of determination, as of the last day of the then most recently ended Test Period ending on December 31st for which financial statements have been delivered pursuant to Section  6.01(a) , the requirement that the Consolidated EBITDA of the Loan Parties shall not be less than 80% of the Consolidated EBITDA of the Parent and its Restricted Subsidiaries for such Test Period, determined on a Pro Forma Basis.

Guarantors ” means each Required Guarantor, as defined in the definition of “Collateral and Guarantee Requirement”, and each other Restricted Subsidiary that shall have become a Guarantor after the Closing Date pursuant to Section  6.11 , in each case subject to the terms, conditions and provisions of the Collateral and Guarantee Requirement. For the avoidance of doubt, the Parent in its sole discretion may cause any Restricted Subsidiary (x) organized or formed in the United States that is not a Guarantor (and, in the case of the U.S. Borrower, that is not an Excluded Subsidiary) to Guarantee the Obligations by causing such Restricted Subsidiary to execute and deliver to the Administrative Agent a Guarantee Supplement (as defined in the Subsidiary Guarantee) substantially in the form attached as an Exhibit to the Subsidiary Guarantee and/or (y) organized or formed in a Covered Jurisdiction that is not a Guarantor to Guarantee the Obligations of the English Borrower by causing such Restricted Subsidiary to execute and deliver to the Administrative Agent a Guarantee Supplement (as defined in the Subsidiary Guarantee) substantially in the form attached as an Exhibit to the Subsidiary Guarantee with, in the case of any Non-U.S. Subsidiary, such limitations and restrictions required to comply with the Agreed Guaranty and Security Principles, subject to the Administrative Agent’s and the applicable Lender(s)’ satisfactory receipt of documentation or other information as required by regulatory authorities under applicable “know your customer” rules and regulations, and the delivery of customary corporate (and, if appropriate, shareholder) resolutions, officer certificates (and, if appropriate, solvency certificates) and legal opinions addressed to the Administrative Agent and the other Secured Parties of counsel for the Loan Parties (or, if applicable, in the relevant jurisdictions, counsel for the Secured Parties) reasonably acceptable to the Administrative Agent as to such customary matters as the Administrative Agent may reasonably request and such other instruments and documents as the Administrative Agent may reasonably request in connection with such Guarantee Supplement, and any such Restricted Subsidiary shall thereafter be a Guarantor, Loan Party and Subsidiary Guarantor hereunder for all purposes.

 

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Hazardous Materials ” means all pollutants or contaminants, in any form, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas and toxic mold, and all materials, substances and wastes that otherwise are regulated pursuant to, or which could give rise to liability under, applicable Environmental Law.

Historical Financial Statements ” means the Annual Financial Statements and the Quarterly Financial Statements.

HMRC ” means Her Majesty’s Revenue & Customs.

Honor Date ” has the meaning set forth in Section  2.03(c) (i) .

IFRS ” means the International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto, as in effect from time to time.

Immaterial Subsidiary” means any direct or indirect Subsidiary of the Parent that is not a Material U.S. Subsidiary or Material Non-U.S. Subsidiary.

Incremental Amendment ” has the meaning set forth in Section  2.14(f) .

Incremental Commitments ” has the meaning set forth in Section  2.14(a) .

Incremental Facility Closing Date ” has the meaning set forth in Section  2.14(d) .

Incremental Lenders ” has the meaning set forth in Section  2.14(c) .

Incremental Loan ” has the meaning set forth in Section  2.14(b) .

Incremental Request ” has the meaning set forth in Section  2.14(a) .

Incremental Revolving Credit Lender ” has the meaning set forth in Section  2.14(c) .

Incremental Revolving Credit Commitment ” has the meaning set forth in Section  2.14(a) .

Incremental Revolving Credit Loan ” has the meaning set forth in Section  2.14(b) .

Incremental Term Commitments ” has the meaning set forth in Section  2.14(a) .

Incremental Term Lender ” has the meaning set forth in Section  2.14(c) .

Incremental Term Loan ” has the meaning set forth in Section  2.14(b) .

Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following:

(a)    all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;

(b)    the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;

 

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(c)    net obligations of such Person under all Swap Contracts to the extent required to be reflected on a balance sheet of such Person;

(d)    all obligations of such Person to pay the deferred purchase price of property or services, which purchase price is (i) due more than six months from the date of incurrence of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument;

(e)    indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f)    all Attributable Indebtedness;

(g)    all obligations of such Person in respect of Disqualified Equity Interests if and to the extent that the foregoing would constitute indebtedness or a liability in accordance with GAAP; and

(h)    to the extent not otherwise included above, all Guarantees of such Person in respect of Indebtedness described in clauses  (a) through (g)  in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner, except to the extent such Person’s liability for such Indebtedness is otherwise limited, (B) in the case of the Consolidated Parties, exclude all intercompany Indebtedness payable on demand or having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business (other than, with respect to Indebtedness of Consolidated Parties, intercompany Indebtedness owing by any Consolidated Party to any Unrestricted Subsidiary), (C) exclude (i) trade accounts and accrued expenses payable in the ordinary course of business, (ii) any earn-out obligation, contingent post-closing purchase price adjustments or indemnification payments in connection with any Permitted Acquisition or permitted Investment, any acquisition consummated prior to the Closing Date or any permitted Disposition, unless such obligation is not paid after becoming due and payable, (iii) accruals for payroll, employee compensation and other liabilities accrued in the ordinary course of business, (iv) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller and (v) liabilities associated with customer prepayments and deposits and (D) exclude obligations under the Gold Royalty Agreement. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e)  shall be deemed to be equal to the lesser of (x) the aggregate unpaid amount thereof and (y) the fair market value of any assets of such Person securing such Indebtedness or to which such Indebtedness otherwise has recourse as reasonably estimated by the Parent in good faith.

Indemnified Taxes ” means (A) all Taxes, other than Excluded Taxes, imposed on or with respect to payments made by or on account of any obligation of any Loan Party under any Loan Document and (B) to the extent not otherwise described in clause (A) , Other Taxes.

 

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Indemnitees ” has the meaning set forth in Section  10.05 .

Information ” has the meaning set forth in Section  10.08 .

Initial Term A Commitment ” means, as to each Term Lender, its obligation to make an Initial Term A Loan to the English Borrower pursuant to Section  2.01(a) in an aggregate amount not to exceed the amount set forth opposite such Lender’s name on Schedule  1.01(a) under the caption “Initial Term A Commitment” or in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Section  2.14 ). The aggregate amount of the Initial Term A Commitments is $200,000,000.

Initial Term A Loans ” means the term A loans made by the Term Lenders on the Closing Date to the English Borrower pursuant to Section  2.01(a) .

Interest Payment Date ” means, (a) as to any LIBOR Rate Loan, the last day of each Interest Period applicable to such Loan and with respect to any Initial Term A Loans, the Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for a LIBOR Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates and (b) as to any ABR Loan, the last Business Day of each March, June, September and December and with respect to any Initial Term A Loans, the Maturity Date of the Facility under which such Loan was made.

Interest Period ” means, as to each LIBOR Rate Loan, the period commencing on the date such LIBOR Rate Loan is disbursed or converted to or continued as a LIBOR Rate Loan and ending on the date that is one, two, three or six months thereafter or, to the extent agreed in writing by each Lender of such LIBOR Rate Loan, 12 months or, in the sole discretion of the Administrative Agent, a shorter period, as selected by the applicable Borrower in its Committed Loan Notice; provided that:

(a)    any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(b)    any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(c)    no Interest Period shall extend beyond the applicable Maturity Date.

Interest Rate Determination Date ” means the date for calculating the LIBOR Rate for an Interest Period, which date shall be (i) in the case of any LIBOR Rate Loan in U.S. Dollars, the second Business Day prior to the first day of the related Interest Period for such Loan or (ii) in the case of any LIBOR Rate Loan in an Alternative Currency consisting of Euro or Sterling, the date on which quotations would ordinarily be given by prime banks in the relevant interbank market for deposits in the Applicable Currency for value on the first day of the related Interest Period for such LIBOR Rate Loan but in any event not earlier than the second Business Day prior to the first day of the related Interest Period; provided , however , that if for any such Interest Period with respect to an Alternative Currency Loan in a currency other than Euro or Sterling, quotations would ordinarily be given on more than one date, the Interest Rate Determination Date shall be the last of those dates.

 

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Interpolated Rate ” means, at any time, the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the Screen Rate for the longest period (for which the Screen Rate for the Applicable Currency is available) that is shorter than the Interest Period and (b) the Screen Rate for the shortest period (for which the Screen Rate for the Applicable Currency is available) that exceeds the Interest Period, in each case, as of approximately 11:00 a.m., London time (or, with respect to Euro denominated Loans, 11.00 a.m., Brussels time), two (2) Business Days prior to the commencement of such Interest Period.

Investment ” means, as to any Person, (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership interest or joint venture interest in such other Person (excluding, in the case of the Parent and its Restricted Subsidiaries, intercompany loans, advances or Indebtedness (in each case owing to the Parent or a Restricted Subsidiary) having a term not exceeding 364 days (inclusive of any roll over or extension of terms) and made in the ordinary course of business) or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such Investment, but giving effect to any repayments of principal in the case of any Investment in the form of Indebtedness and any return of capital or return on Investment in the case of any equity Investment (whether as a distribution, dividend, redemption or sale).

Investment Adviser ” means Persons who are: (a) investment advisers registered under the Investment Advisers Act or are supervised persons of, or persons associated with, an investment adviser (in each case as defined in the Investment Advisers Act); and/or (b) broker-dealers registered under the Exchange Act (or associated persons thereof, as defined in the Exchange Act).

Investment Advisers Act ” means the United States Investment Advisers Act of 1940, as amended, and the rules and regulations promulgated thereunder.

“Investment Vehicle” means a separate account or vehicle for collective investment (in whatever form of organization, including a corporation, limited liability company, partnership, association, trust, fund or other entity, and including each separate portfolio or series of any of the foregoing), including any vehicle or entity established for purposes of issuing and/or investing in exchange-traded equities, funds, notes, securities, commodities, currency and short-and-leveraged products and similar structured products, which investments are managed by the Parent or any of its Restricted Subsidiaries in the ordinary course of business.

IP Rights ” has the meaning set forth in Section  5.15 .

IRS ” means the U.S. Internal Revenue Service.

ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable L/C Issuer, the applicable Borrower (or any Restricted Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.

 

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Issuing Country ” has the meaning set forth in Section  2.04(e) .

Jersey ” means the Bailiwick of Jersey.

Jersey SIA ” means each Jersey law security interest agreement over the shares of a Subsidiary organized under the Laws of Jersey.

Jersey Registration ” has the meaning set forth in Section  4.01(a)(vi)(B) .

Jersey Security Register ” means the security interests register established under Part 8 of the Security Interests (Jersey) Law 2012.

Judgment Currency ” has the meaning set forth in Section  10.24 .

Junior Financing ” has the meaning set forth in Section  7.12(a) .

Junior Financing Documentation ” means any documentation governing any Junior Financing.

Latest Maturity Date ” means, at any date of determination, the latest Maturity Date applicable to any Loan or Commitment hereunder at such time, including the latest maturity date of any Extended Revolving Credit Commitments, Refinancing Revolving Credit Commitments, Extended Term Loans, Incremental Term Loans, Refinancing Term Loans, Replacement Term Loans and Refinancing Term Commitments, in each case as extended in accordance with this Agreement from time to time.

Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, legally binding guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the legally binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, legally binding requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.

L/C Advance ” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share or other applicable share provided for under this Agreement.

L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the applicable Honor Date or refinanced as a Revolving Credit Borrowing.

L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.

L/C Disbursement ” means a payment or disbursement made by an L/C Issuer pursuant to a Letter of Credit.

L/C Fronting Fee ” has the meaning set forth in Section  2.03(i) .

L/C Issuer ” means (a) Credit Suisse AG, Cayman Islands Branch and (b) Bank of America, N.A. (directly or through their respective domestic or foreign branches or Affiliates) and any other Lender

 

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that becomes an L/C Issuer in accordance with Section  2.03(k) or 10.07(j) , in each case, in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. If there is more than one L/C Issuer at any given time, the term L/C Issuer shall refer to the relevant L/C Issuer(s).

L/C Obligations ” means, as at any date of determination, the U.S. Dollar Equivalent of the aggregate amount available to be drawn under all outstanding Letters of Credit plus the U.S. Dollar Equivalent of the aggregate amount of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section  1.10 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

LCT Election ” has the meaning set forth in Section  1.08(b) .

LCT Test Date ” has the meaning set forth in Section  1.08(b) .

Legal Reservations ” means:

(a)    the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court, the principle of good faith and fair dealing, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganization, court schemes, moratoria, administration and other laws generally affecting the rights of creditors and secured creditors;

(b)    the time barring of claims under applicable limitation laws and defenses of acquiescence, set-off or counterclaim (including the Limitation Acts) and the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void;

(c)    the principle that in certain circumstances in certain jurisdictions security granted by way of fixed charge may be re-characterized by a court as a floating charge or that security purported to be constituted as an assignment may be re-characterized as a charge;

(d)    the principle that additional interest or payment of compensation imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;

(e)    the principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant;

(f)    the principle that the creation or purported creation of security over any contract or agreement which is subject to a prohibition on transfer, assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which security has purportedly been created;

(g)    similar principles, rights and defenses under the laws of any relevant jurisdiction;

(h)    any other matters which are set out as qualifications or reservations (however described) as to matters of law in any legal opinions provided under this Agreement;

 

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(i)    the principle that the legality, validity, binding nature or enforceability of any Collateral Document which is not governed by the laws of the jurisdiction where the asset or assets purported to be secured under that Collateral Document are situated may be flawed; and

(j)    the need for filings and registrations necessary to create or perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties.

Lender ” has the meaning set forth in the introductory paragraph to this Agreement and, as the context requires, includes the L/C Issuers and each Additional Lender and Additional Refinancing Lender that becomes a Lender in accordance with the terms hereof, and their respective successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender”.

Lending Office ” means, as to any Lender, such office or offices as a Lender may from time to time notify the applicable Borrower and the Administrative Agent.

Letter of Credit ” means any standby letter of credit issued hereunder.

Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the relevant L/C Issuer.

Letter of Credit Expiration Date ” means the day that is five (5) Business Days prior to the scheduled Maturity Date then in effect for the applicable Revolving Credit Facility.

Letter of Credit Sublimit ” means an amount equal to the lesser of (a) the U.S. Dollar Equivalent of $10,000,000 and (b) the aggregate amount of the Multicurrency Revolving Credit Commitments. The Letter of Credit Sublimit is part of, and not in addition to, the Multicurrency Revolving Credit Facility.

LIBOR Rate ” means the product of (a) and (b) below:

(a)    

(i)    in the case of U.S. Dollar denominated Loans, the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the appropriate page of the Reuters screen (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion) that displays the ICE Benchmark Administration Limited (or the successor interest rate benchmark provider if ICE Benchmark Administration Limited is no longer making the applicable interest settlement rate available) rate for deposits in U.S. Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (the “ US LIBOR Screen Rate ”), determined as of approximately 11:00 a.m. (London time) on the applicable Interest Rate Determination Date (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates); provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBOR Rate” for U.S. Dollar denominated Loans shall be the Interpolated Rate; or

(ii)    in the case of Euro denominated Loans, the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the

 

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appropriate page of the Reuters screen (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion) that displays the Global Rate Set Systems Limited (or the successor interest rate benchmark provider if Global Rate Set Systems Limited is no longer making the applicable interest settlement rate available) rate for deposits in Euros (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (the “ EURIBOR Screen Rate ”), determined as of approximately 11:00 a.m. (Brussels time) on the applicable Interest Rate Determination Date (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates); provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBOR Rate” for Euro denominated Loans shall be the Interpolated Rate; or

(iii)    in the case of Loans denominated in any Alternative Currency (other than Euro), the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the appropriate page of the Reuters screen (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion) that displays the ICE Benchmark Administration Limited rate for deposits in the applicable Alternative Currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (or the successor thereto if ICE Benchmark Administration Limited is no longer making the applicable interest settlement rate available) (the “ LIBOR Screen Rate ”, and together with the US LIBOR Screen Rate and the EURIBOR Screen Rate, the “ Screen Rate ”), determined as of approximately 11:00 a.m. (London time) on the applicable Interest Rate Determination Date (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates); provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBOR Rate” for Loans denominated in any Alternative Currency (other than Euro) shall be the Interpolated Rate; or

(iv)    for any interest calculation with respect to an ABR Loan on any date, the rate per annum equal to the US LIBOR Screen Rate (or any successor to or substitute for such rate), determined at approximately 11:00 a.m. (London Time) on the applicable Interest Rate Determination Date for U.S. Dollar deposits being delivered in the London interbank market for a term of one month commencing that day (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates); provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBOR Rate” for such ABR Loans shall be the Interpolated Rate; or

(v)    in the case of any LIBOR Rate Loan with an Interest Period shorter than one month, such Loan shall accrue interest for the actual number of days in such Interest Period at a rate per annum equal to the then current LIBOR Rate for the applicable currency for a one-month Interest Period; and

(b)    the then current Statutory Reserve Requirements of the Lenders,

 

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provided that, notwithstanding the foregoing, if the LIBOR Rate shall be less than 0%, such rate shall be deemed to be 0% for purposes of this Agreement.

LIBOR Rate Loan ” means a Loan that bears interest at a rate determined by reference to the LIBOR Rate.

LIBOR Screen Rate ” has the meaning set forth in the definition of “LIBOR Rate”.

Lien ” means any mortgage, pledge, hypothecation, collateral assignment, encumbrance, lien (statutory or other), charge or other security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to Real Property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing).

Limitation Acts ” means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.

Limited Condition Transaction ” means (i) any Permitted Acquisition or Investment by the Parent or one or more of its Restricted Subsidiaries whose consummation is not conditioned upon the availability of, or on obtaining, third party financing or any asset sale, (ii) any repayment, repurchase or refinancing of Indebtedness with respect to which advanced notice of repayment (or similar irrevocable notice) is required to be delivered or (iii) any dividends or distributions on, or redemptions of, Equity Interests permitted to be issued pursuant to this Agreement requiring irrevocable notice in advance thereof.

Loan ” means an extension of credit under Article  II by a Lender to the Borrowers in the form of a Term Loan or a Revolving Credit Loan (including any Initial Term A Loans, any Multicurrency Revolving Credit Loans, any Incremental Term Loans and any extensions of credit under any Revolving Credit Commitment Increase or New Revolving Credit Commitment, any Extended Term Loans and any extensions of credit under any Extended Revolving Credit Commitment, any Refinancing Term Loans and any extensions of credit under any Refinancing Revolving Credit Commitment and any Replacement Term Loans).

Loan Documents ” means, collectively, (i) this Agreement (including the schedules hereto), (ii) the Notes, (iii) the Collateral Documents, (iv) any Customary Intercreditor Agreement, (v) any Refinancing Amendment, Incremental Amendment, Extension Amendment or Replacement Term Loans Amendment, (vi) each Letter of Credit Application, (vii) any amendment or joinder to this Agreement or any Customary Intercreditor Agreement and (viii) each other document designated in writing by (A) the Administrative Agent and/or the Lenders and (B) the Parent as a “Loan Document”.

Loan Parties ” means, collectively, the Borrowers, U.S. Midco and each Subsidiary Guarantor.

LTM EBITDA ” means, as of any date of determination, Consolidated EBITDA calculated on a Pro Forma Basis as of the last day of the then most recently ended Test Period for such Test Period.

Margin Stock ” has the meaning assigned to such term in Regulation U of the Board of Governors of the United States Federal Reserve System, or any successor thereto.

Master Agreement ” has the meaning set forth in the definition of “Swap Contract”.

Material Adverse Effect ” means (a) on the Closing Date, a MAC Event (as defined in the Acquisition Agreement) and (b) after the Closing Date, a material adverse effect on (i) the business,

 

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financial condition or results of operations, in each case, of the Consolidated Parties, taken as a whole, (ii) the rights and remedies (taken as a whole) of the Administrative Agent hereunder or under the other Loan Documents or (iii) the ability of the Loan Parties, taken as a whole, to perform their payment obligations hereunder or under the other Loan Documents.

Material Non-U.S. Subsidiary ” means, at any date of determination, each of the Parent’s Non-U.S. Subsidiaries that is a Restricted Subsidiary (a) whose total assets as of the last day of the most recently ended fiscal year of the Parent for which financial statements have been delivered pursuant to Section  6.01(a) comprised in the aggregate more than 5.0% of Total Assets as of such date or (b) whose gross revenues for such fiscal year comprised more than 5.0% of the consolidated gross revenues of the Consolidated Parties for such fiscal year. Assets of Non-U.S. Subsidiaries shall be converted into U.S. Dollars at the rates used for purposes of preparing the consolidated balance sheet of the Parent included in such financial statements.

Material Non-Public Information ” means information that is (a) not publicly available, (b) material with respect to the Consolidated Parties or their respective securities for purposes of United States federal and state securities laws and (c) of a type that would not be publicly disclosed in connection with any issuance by any Consolidated Party of debt or equity securities issued pursuant to a public offering, a Rule 144A offering or other private placement where assisted by a placement agent.

Material Real Property ” means any fee-owned real property that is acquired by any Loan Party after the Closing Date and that has a fair market value in excess of $10,000,000 at the time of acquisition, as reasonably estimated by the Parent in good faith.

Material Subsidiary ” means any Material U.S. Subsidiary or any Material Non-U.S. Subsidiary.

Material U.S. Subsidiary ” means, at any date of determination, each of the Parent’s U.S. Subsidiaries that is a Restricted Subsidiary (i) whose total assets as of the last day of the most recently ended fiscal quarter of the Parent for which financial statements have been delivered pursuant to Section  6.01(a) or (b)  comprised in the aggregate more than 5.0% of Total Assets as of such date or (ii) whose gross revenues for such fiscal quarter comprised more than 5.0% of the consolidated gross revenues of the Consolidated Parties for such fiscal quarter.

Maturity Date ” means (i) with respect to the (a) Initial Term A Loans and (b) the Multicurrency Revolving Credit Facility, April 11, 2021, (ii) with respect to any tranche of Extended Term Loans or Extended Revolving Credit Commitments, the final maturity date as specified in the applicable Extension Amendment, (iii) with respect to any Incremental Term Loans or any Incremental Revolving Credit Commitment respectively, the final maturity date as specified in the applicable Incremental Amendment, (iv) with respect to any Refinancing Term Loans or Refinancing Revolving Credit Commitments, the final maturity date as specified in the applicable Refinancing Amendment, and (v) with respect to any Replacement Term Loans, the final maturity date as specified in the Replacement Term Loans Amendment; provided that, in each case, if such day is not a Business Day, the Maturity Date shall be the Business Day immediately succeeding such day.

Maximum Rate ” has the meaning set forth in Section  10.10 .

Minority Investment ” means any Person other than a Subsidiary in which the Parent or any Restricted Subsidiary owns any Equity Interests.

Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

 

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Mortgage Policies ” has the meaning set forth in the definition of “Collateral and Guarantee Requirement”.

Mortgaged Properties ” has the meaning set forth in the definition of “Collateral and Guarantee Requirement”.

Mortgages ” means collectively, the deeds of trust, trust deeds, hypothecs and mortgages made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties creating and evidencing a Lien on a Mortgaged Property in form and substance reasonably satisfactory to the Administrative Agent, and any other mortgages executed and delivered pursuant to Sections  6.11 and 6.13 , in each case, as the same may from time to time be amended, restated, supplemented or otherwise modified.

Multicurrency Revolving Credit Commitment ” means, with respect to any Multicurrency Revolving Credit Lender, the obligation of such Multicurrency Revolving Credit Lender to make Multicurrency Revolving Credit Loans (including loans made pursuant to any Incremental Revolving Credit Commitment that increases the Multicurrency Revolving Credit Facility and loans made pursuant to any Extended Credit Revolving Commitment or Refinancing Revolving Credit Commitment) and to participate in Letters of Credit, as such commitment may be adjusted from time to time pursuant to this Agreement, which commitment as of the Closing Date is the amount set forth opposite such Lender’s name on Schedule 1.01(d) hereto under the caption “Amount of Multicurrency Revolving Credit Commitment”, and “Multicurrency Revolving Credit Commitments” means such commitments collectively, which commitments equal $50,000,000 in the aggregate as of the Closing Date.

Multicurrency Revolving Credit Facility ” means the multicurrency revolving credit facility under this Agreement evidenced by the Multicurrency Revolving Credit Commitments (including commitments under any Incremental Revolving Credit Commitment that increases the Multicurrency Revolving Credit Commitments, Extended Revolving Credit Commitments and Refinancing Revolving Credit Commitments) and the Multicurrency Revolving Credit Loans (including loans made pursuant to any Incremental Revolving Credit Commitment that increases the Multicurrency Revolving Credit Facility and loans made pursuant to any Extended Revolving Credit Commitment and any Refinancing Revolving Credit Commitment).

Multicurrency Revolving Credit Lender ” means any Lender which has a Multicurrency Revolving Credit Commitment or has made a Multicurrency Revolving Credit Loan. Each reference to any Multicurrency Revolving Credit Lender shall be deemed to include such Multicurrency Revolving Credit Lender’s Applicable Designee. Notwithstanding the designation by any Multicurrency Revolving Credit Lender of an Applicable Designee, the Loan Parties and the Administrative Agent shall be permitted to deal solely and directly with such Multicurrency Revolving Credit Lender in connection with such Multicurrency Revolving Credit Lender’s rights and obligations under this Agreement.

Multicurrency Revolving Credit Loan ” and “ Multicurrency Revolving Credit Loans ” have the meanings set forth in Section  2.01(b) .

Multicurrency Revolving Credit Pro Rata Share ” means, when used with reference to any Multicurrency Revolving Credit Lender under the Multicurrency Revolving Credit Facility and any described aggregate or total amount, an amount equal to the result obtained by multiplying such described aggregate or total amount by a fraction the numerator of which shall be such Multicurrency Revolving Credit Lender’s Multicurrency Revolving Credit Commitment under such Facility or, if the Maturity Date with respect to such Facility has occurred, such Multicurrency Revolving Credit Lender’s Multicurrency Revolving Credit Commitment most recently in effect under such Facility immediately prior to such date,

 

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giving effect to any subsequent assignments and the denominator of which shall be the Multicurrency Revolving Credit Commitments under such Facility or, if the Maturity Date with respect to such Facility has occurred, the Multicurrency Revolving Credit Commitments most recently in effect under such Facility immediately prior to such date.

Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which a Loan Party, any Restricted Subsidiary or any ERISA Affiliate (to the extent such event would be reasonably likely to result in liability to a Loan Party) makes or is obligated to make contributions, or during the preceding six plan years, has made or been obligated to make contributions.

Net Proceeds ” means:

(a)    100% of the cash proceeds actually received by any Consolidated Party (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but in each case only as and when received) from any Disposition or Casualty Event, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums and related search and recording charges, transfer Taxes, deed or mortgage recording Taxes, other customary expenses and brokerage, consultant and other customary fees and expenses actually incurred in connection therewith, (ii) the principal amount of any Indebtedness that is secured by a Lien (other than a Lien subordinated to the Liens securing the Obligations) on the asset subject to such Disposition or Casualty Event and that is required to be repaid in connection with such Disposition or Casualty Event (other than Indebtedness under the Loan Documents), together with any applicable premium, penalty, interest and breakage costs, (iii) in the case of any Disposition or Casualty Event by a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause  (iii) ) attributable to minority interests and not available for distribution to or for the account of any wholly-owned Consolidated Party as a result thereof, (iv) Taxes actually paid or payable, or Tax distributions that the Borrowers or their Subsidiaries may be required to make to Parent, as a result thereof, (v) the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any Taxes deducted pursuant to clause  (i) above) (x) related to any of the applicable assets and (y) retained by any Consolidated Party including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Disposition or Casualty Event occurring on the date of such reduction) and (vi) any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition ( provided that to the extent that any amounts are released from such escrow to a Consolidated Party, such amounts net of any related expenses shall constitute Net Proceeds); provided that, subject to the restrictions set forth in Section  7.05(i) , if any Consolidated Party uses any portion of such proceeds to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Consolidated Parties (other than ordinary course current assets), to make one or more Permitted Acquisitions (or any subsequent investment made in a Person, division or line of business previously acquired), or to prepay, terminate or otherwise retire any obligations under the Gold Royalty Agreement, in each case within 12 months of such receipt, such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such

 

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proceeds are not so used within such 12-month period but within such 12-month period are contractually committed to be used, then upon the termination of such contract or if such Net Proceeds are not so used within the later of such 12-month period and 180 days from the entry into such contractual commitment, such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso); provided , further , that no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless the aggregate amount of such net proceeds shall exceed $7,500,000 (or the U.S. Dollar Equivalent in any currency other than U.S. Dollars) in any fiscal year (and thereafter only net cash proceeds in excess of such amount shall constitute Net Proceeds under this clause  (a) ), and

(b)    100% of the cash proceeds from the incurrence, issuance or sale by any Consolidated Party of any Indebtedness or Equity Interests, as applicable, net of all Taxes paid or reasonably estimated to be payable as a result thereof and fees (including investment banking fees and discounts), commissions, costs and other expenses, in each case incurred in connection with such incurrence, issuance or sale.

For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to any Consolidated Party shall be disregarded.

New Lender Date ” has the meaning set forth in clause (b)(i) of the definition of “UK DTTP Filing”.

New Revolving Credit Commitment ” has the meaning set forth in Section  2.14(a) .

Non-Consenting Lender ” has the meaning set forth in Section  3.07(d) .

Non-Defaulting Lender ” means, at any time, a Lender that is not a Defaulting Lender.

Non-Extension Notice Date ” has the meaning set forth in Section  2.03(b)(iii) .

Non-Guarantor Cap ” means the greater of $27,500,000 and 25.0% of LTM EBITDA on the date such Investment is made, reduced by Investments made in reliance thereon under Section  7.02(c)(iii) and, without duplication, Indebtedness incurred in reliance thereon under Section  7.03(d) .

Non-U.S. Subsidiary ” means any direct or indirect Subsidiary of the U.S. Borrower that is not a U.S. Subsidiary.

Not Otherwise Applied ” means, with reference to any amount of Net Proceeds of any transaction or event, that such amount (a) was not required to be applied to prepay the Loans pursuant to Section  2.05(b) and (b) was not previously (and is not currently being) applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was or is (or may have been) contingent on receipt of such amount or utilization of such amount for a specified purpose.

Note ” means a Term Note or a Revolving Credit Note, as the context may require.

Obligations ” means (x) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party and its Restricted Subsidiaries arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees and expenses that accrue after the commencement by or against any Loan Party or

 

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Restricted Subsidiary of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and expenses are allowed claims in such proceeding and (y) for purposes of the definition of Collateral and Guarantee Requirement, the Collateral Documents, the Guaranties and Section  8.03 only, obligations of any Loan Party arising under any Secured Hedge Agreement or any Treasury Services Agreement. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and of their Restricted Subsidiaries to the extent they have obligations under the Loan Documents) include (a) the obligation (including guarantee obligations) to pay principal, interest, Letter of Credit fees, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any Lender may elect to pay or advance on behalf of such Loan Party in accordance with the terms of the Loan Documents. Notwithstanding the foregoing, (I) the obligations of the Borrowers or any Restricted Subsidiary under any Secured Hedge Agreement or any Treasury Services Agreement shall be secured and guaranteed pursuant to the Collateral Documents and the Guaranties only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (II) any release of Collateral or Guarantors effected in a manner permitted by this Agreement or any other Loan Document will not require the consent of any Lender or any Affiliate of a Lender in its capacity as a counterparty under any Swap Contract. Notwithstanding the foregoing, the Obligations of any Guarantor shall in no event include any Excluded Swap Obligations of such Guarantor.

OFAC ” has the meaning set forth in Section  5.17(b) .

OID ” means original issue discount.

Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement or any offering document issued by such limited liability company; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

Other Applicable Indebtedness ” has the meaning set forth in Section  2.05(b)(ii) .

Other Connection Taxes ” means, with respect to any Lender or Agent, Taxes that are imposed as a result of any present or former connection between such Lender or Agent and the jurisdiction imposing such Tax (other than any connections arising solely from such Lender or Agent executing, delivering, becoming a party to, performing its obligations under, receiving payments under, receiving or perfecting a security interest under, engaging in any other transaction pursuant to, or enforcing, any Loan Document, or selling or assigning an interest in a Loan or Loan Document).

Other Taxes ” means all present or future stamp, court or documentary, intangible, mortgage, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, recording, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment that is requested or required in writing by the Borrower).

 

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Overnight Rate ” means, for any day, (a) with respect to any amount denominated in U.S. Dollars, the Federal Funds Effective Rate and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of the Administrative Agent in the applicable offshore interbank market for such currency to major banks in such interbank market.

Parent ” has the meaning set forth in the preamble to this Agreement.

Parent Guarantee ” means that certain Parent Guarantee, dated as of the Closing Date, by the Parent and U.S. Midco in favor of the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit A-1 attached hereto.

Participant ” has the meaning set forth in Section  10.07(e) .

Participant Register ” has the meaning set forth in Section  10.07(e) .

Participating Member State ” means any member state of the European Communities that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.

PBGC ” means the Pension Benefit Guaranty Corporation.

Pension Plan ” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate (to the extent such event would be reasonably likely to result in liability to a Loan Party) or to which any Loan Party or any ERISA Affiliate (to the extent such event would be reasonably likely to result in liability to a Loan Party) contributes or has an obligation to contribute, or in the case of a plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

Perfection Certificate ” means a certificate substantially in the form of Exhibit J hereto or any other form reasonably approved by the Administrative Agent, as the same shall be supplemented from time to time.

Perfection Requirements ” means the making or procuring of appropriate registrations, filings, endorsements, notarizations, stampings and/or notifications of the Collateral Documents and/or the Liens expressed to be created under the Collateral Documents necessary in any relevant jurisdiction for the enforceability or production in evidence or the relevant priority of the Collateral Document.

Permitted Acquisition ” has the meaning set forth in Section  7.02(i) .

Permitted Junior Priority Refinancing Debt ” means secured Indebtedness in the form of one or more series of junior lien secured notes, bonds or debentures or junior lien secured loans (and, if applicable, any Registered Equivalent Notes issued in exchange therefor); provided that

(i) such Indebtedness may only be incurred by the Parent,

(ii) such Indebtedness is (x) secured by a Lien on all or a portion of the Collateral of the Parent or any U.S. Loan Party on a junior priority basis to the Liens on such Collateral securing the Obligations of the Parent and is not secured by any other property or assets of the Parent or any of its Subsidiaries, and (y) is secured pursuant to documentation no more favorable to the secured parties thereunder than the terms of the Collateral Documents,

 

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(iii) such Indebtedness satisfies the applicable requirements set forth in the provisos in the definition of “Credit Agreement Refinancing Indebtedness”,

(iv) the holders of such Indebtedness (or any trustee, agent or similar representative on their behalf) and the Administrative Agent and/or the Collateral Agent shall be party to a Customary Intercreditor Agreement providing that the Liens on such Collateral securing such obligations shall rank junior to the Liens on such Collateral securing the Obligations of the Parent, and

(v) such Indebtedness is not at any time guaranteed by any of the Parent’s Subsidiaries other than the Loan Parties that guarantee the Parent’s Obligations.

Permitted Liens ” has the meaning set forth in Section  7.01 .

Permitted Refinancing ” means, with respect to any Person, any modification, refinancing, refunding, renewal, restructuring, replacement or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, restructured, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium thereon plus other amounts owing or paid related to such Indebtedness, and fees and expenses incurred, in connection with such modification, refinancing, refunding, renewal, restructuring, replacement or extension and by an amount equal to any existing commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section  7.03(e) , such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended, (c) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section  7.03(e) , at the time thereof, no Event of Default shall have occurred and be continuing, (d) if such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations on terms (i) that reflect market terms (as reasonably determined by the Parent) at the time of incurrence or issuance of such Permitted Refinancing or (ii) otherwise reasonably acceptable to the Administrative Agent, (e) in the event of a refinancing, refunding, renewal, restructuring, replacement or extension only, such refinancing, refunding, renewal, restructuring, replacement or extension shall occur concurrently with such Indebtedness being repaid, repurchased, retired, defeased or satisfied and discharged, as applicable, and all accrued interest, fees, premiums (if any) and penalties in connection therewith shall be paid on such date, (f) such modification, refinancing, refunding, renewal, restructuring, replacement or extension of Indebtedness is not at any time guaranteed by any Person other than the guarantors of such Indebtedness and (g) any such modification, refinancing, refunding, renewal, restructuring, replacement or extension of Indebtedness shall be pari passu or junior in right of payment and, if secured, secured on no more senior a basis than such Indebtedness being refinanced.

Permitted Reorganization ” means one or more internal reorganizations of the Parent and its Subsidiaries related to tax planning or intended to promote compliance with applicable regulatory Laws completed at any time after the Closing Date, which reorganization may include, among other things, mergers, asset sales, consolidations, separations of businesses and lines of business, and other divestitures (including antitrust divestitures and other reorganizations in connection therewith in connection with the

 

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Acquisition), and intercompany transactions involving asset transfers or sales, contributions, Indebtedness or Equity Interests of the Parent or any of its Restricted Subsidiaries; provided that, both immediately before and immediately after giving effect to such Permitted Reorganization, and at all times during such Permitted Reorganization, the following conditions shall be satisfied:

(a)    no Event of Default has occurred and is continuing or would result therefrom;

(b)    subject, in the case of any Non-U.S. Subsidiary, to the Agreed Guaranty and Security Principles and Sections 6.11 and 6.13(b) , and to the terms, conditions and provisions of the Collateral and Guarantee Requirement, following the consummation of such Permitted Reorganization, the Collateral that remains in existence and owned by a Loan Party that would otherwise be required to pledge such Collateral pursuant to a Collateral Document shall remain subject to (or, in the case of Collateral created or transferred to any such Person as part of any step of such Permitted Reorganization, shall become subject to) a perfected security interest of the Collateral Agent to the extent required by and in accordance with the terms of the Loan Documents (giving due regard to any grace periods provided for herein or therein);

(c)    immediately after giving effect to such Permitted Reorganization, the Guarantor Coverage Requirement shall be satisfied; and

(d)    immediately after giving effect to such Permitted Reorganization, the Borrowers shall continue to be Borrowers under the Multicurrency Revolving Credit Facility, and the English Borrower shall continue to be the Borrower of the Initial Term A Loans.

Permitted Repricing Amendment ” has the meaning set forth in Section  10.01 .

Permitted Unsecured Refinancing Debt ” means unsecured Indebtedness in the form of one or more series of senior unsecured notes, bonds or debentures or loans (and, if applicable, any Registered Equivalent Notes issued in exchange therefor); provided that

(i) such Indebtedness may only be incurred by the Parent,

(ii) such Indebtedness satisfies the applicable requirements set forth in the provisos in the definition of “Credit Agreement Refinancing Indebtedness”, and

(iii) such Indebtedness is not at any time guaranteed by any of the Parent’s Subsidiaries other than the Loan Parties that guarantee the Parent’s Obligations.

Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established or maintained by any Loan Party or any Restricted Subsidiary or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

Platform ” has the meaning set forth in Section  6.01(d) .

Pledged Collateral ” has the meaning set forth in the definition of “Collateral and Guarantee Requirement”.

Prime Rate ” has the meaning set forth in the definition of “ABR”.

 

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Proceeding ” has the meaning set forth in Section  10.05 .

Proceeds ” has the meaning set forth in the applicable Collateral Document.

Projections ” has the meaning set forth in Section  6.01(c) .

Pro Forma Basis ” and “ Pro Forma Effect ” mean, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section  1.09 .

Pro Forma Financial Statements ” has the meaning set forth in Section  5.05(b) .

Pro Rata Share ” means, with respect to each Lender, at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments and, with respect to any Term Loans after the applicable borrowing date if applicable and without duplication, the Term Loans of such Lender under the applicable Facility or Facilities at such time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility or Facilities and, with respect to any Term Loans after the applicable borrowing date if applicable and without duplication, the Term Loans under the applicable Facility or Facilities at such time; provided that, in the case of any Revolving Credit Facility, if such Commitments have been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.

PTE ” means a prohibited transaction class exemption by the U.S. Department of Labor, as any such exemption may be amended from time to time.

Public Company Costs ” means, as to any Person, costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and costs relating to compliance with the provisions of the Securities Act and the Exchange Act, as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity, directors’, managers’ and/or employees’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees and other costs and/or expenses associated with being a public company.

Public Lender ” has the meaning set forth in Section  6.01(d) .

Qualified Equity Interests ” means any Equity Interests that are not Disqualified Equity Interests.

Quarterly Financial Statements ” means the unaudited consolidated balance sheets and related statements of income and cash flows of the Parent for the fiscal quarter ended September 30, 2017.

Re-Allocation Agreement ” means a Re-Allocation Agreement solely among the Lenders and the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent.

Real Property ” means, collectively, all right, title and interest (including any leasehold, mineral or other estate) in and to any and all parcels of or interests in real property owned or leased by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.

 

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Recipient ” has the meaning set forth in Section  3.01(h)(ii) .

Re-Denomination Event ” means (i) the occurrence of any Event of Default with respect to any Borrower pursuant to Sections 8.01(a) or 8.01(e) , (ii) the declaration of the termination of any Commitment, or the acceleration of the maturity of any Loans, in each case pursuant to the provisions of Article VIII hereof or (iii) the failure of any Borrower to pay any principal of, or interest on, any Loans of any Facility or any L/C Borrowings on the applicable Maturity Date.

Reference Date ” has the meaning set forth in the definition of “Available Amount”.

Refinanced Debt ” has the meaning set forth in the definition of “Credit Agreement Refinancing Indebtedness”.

Refinanced Term Loans ” has the meaning set forth in Section  10.01 .

Refinancing Amendment ” means an amendment to this Agreement executed by each of (a) the Parent, (b) the applicable Borrower(s), (c) the Administrative Agent, (d) each Additional Refinancing Lender and (e) each Lender that agrees to provide any portion of the Refinancing Term Loans, Refinancing Revolving Credit Commitments or Refinancing Revolving Credit Loans incurred pursuant thereto, in accordance with Section  2.15 .

Refinancing Revolving Credit Commitments ” means one or more Classes of Revolving Credit Commitments hereunder that result from a Refinancing Amendment.

Refinancing Revolving Credit Loans ” means one or more Classes of Revolving Credit Loans that result from a Refinancing Amendment.

Refinancing Series ” means all Refinancing Term Loans or Refinancing Term Commitments that are established pursuant to the same Refinancing Amendment (or any subsequent Refinancing Amendment to the extent such Refinancing Amendment expressly provides that the Refinancing Term Loans or Refinancing Term Commitments, Refinancing Revolving Credit Loans or Refinancing Revolving Credit Commitments provided for therein are intended to be a part of any previously established Refinancing Series) and that provide for the same All-In Yield (other than, for this purpose, any OID or upfront fees), if applicable and amortization schedule.

Refinancing Term Commitments ” means one or more term loan commitments hereunder that fund Refinancing Term Loans of the applicable Refinancing Series hereunder pursuant to a Refinancing Amendment.

Refinancing Term Loans ” means one or more Classes of Term Loans that result from a Refinancing Amendment.

Register ” has the meaning set forth in Section  10.07(d) .

Registered Equivalent Notes ” means, with respect to any notes originally issued in an offering pursuant to Rule 144A under the Securities Act or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.

 

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Rejection Notice ” has the meaning set forth in Section  2.05(b)(vii) .

Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, advisors, managers and representatives of such Person and of such Person’s Affiliates.

Release ” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into, or migration through, the Environment or any facility or property.

Relevant Party ” has the meaning set forth in Section  3.01(h)(ii) .

“Replacement Term Loans Amendment” means an amendment to this Agreement executed by each of (a) the Parent, (b) the applicable Borrower(s), (c) the Administrative Agent, (d) each Lender that agrees to provide any portion of the Replacement Term Loans, in accordance with Section  10.01 .

Replacement Term Loans ” has the meaning set forth in Section  10.01 .

Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the otherwise applicable notice period has been waived by regulation or otherwise by the PBGC.

Request for Credit Extension ” means (a) with respect to a Borrowing, continuation or conversion of Term Loans or Revolving Credit Loans, a Committed Loan Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.

Required Guarantor ” has the meaning set forth in the definition of “Collateral and Guarantee Requirement”.

Required Lenders ” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this definition), (b) aggregate unused Term Commitments and (c) aggregate unused Revolving Credit Commitments, unused Refinancing Revolving Credit Commitments and unused Extended Revolving Credit Commitments; provided that the unused Term Commitments, Revolving Credit Commitments, Refinancing Revolving Credit Commitments and Extended Revolving Credit Commitments of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

Required Revolving Lenders ” means, as of any date of determination, Revolving Credit Lenders having more than 50% of the sum of (a) the Effective Amount of all Revolving Credit Loans and L/C Obligations (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments and unused Refinancing Revolving Credit Commitments; provided that the Revolving Credit Commitment and Refinancing Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.

 

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Requirement of Law ” means, as to any Person, any Law imposing a legal obligation or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Reset Date ” has the meaning set forth in Section  1.12 .

Responsible Officer ” means the chief executive officer, president, vice president, chief financial officer, chief administrative officer, secretary or assistant secretary, treasurer or assistant treasurer, controller or other similar officer of a Loan Party, and with respect to Committed Loan Notices, any designee thereof. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

Restricted Debt Payment ” has the meaning set forth in Section  7.12(a) .

Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of any Consolidated Party, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to such Consolidated Party’s equity holders, partners or members (or the equivalent Persons thereof).

Restricted Subsidiary ” means any Subsidiary of the Parent (including any Subsidiary organized under the Laws of Jersey) other than an Unrestricted Subsidiary.

Return ” means, with respect to any Investment, any dividends, distributions, interest, fees, premium, return of capital, repayment of principal, income, profits (from a Disposition or otherwise) and other amounts (whether in cash, securities or other property) received or realized in respect of such Investment.

Revolver Extension Request ” has the meaning set forth in Section  2.16(b) .

Revolver Extension Series ” has the meaning set forth in Section  2.16(b) .

Revolving Credit Borrowing ” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of LIBOR Rate Loans, having the same Interest Period, made by each of the Revolving Credit Lenders.

Revolving Credit Commitments ” means the Multicurrency Revolving Credit Commitments and any other Class of Revolving Credit Commitments established pursuant to this Agreement (including any Revolving Credit Commitment Increase, any New Revolving Credit Commitments, each Extension Series of Extended Revolving Credit Commitments, and/or each Refinancing Series of Refinancing Revolving Credit Commitments and, in each case, the Credit Extensions made thereunder, as the context requires).

Revolving Credit Commitment Increase ” has the meaning set forth in Section  2.14(a) .

Revolving Credit Exposure ” means, as to each Revolving Credit Lender, the sum of the amount of the Effective Amount of such Revolving Credit Lender’s Revolving Credit Loans and its Pro Rata Share or other applicable share provided for under this Agreement of the amount of the L/C Obligations at such time.

 

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Revolving Credit Facility ” means the Multicurrency Revolving Credit Facility and any other Class of Revolving Credit Commitments, including any Revolving Credit Commitment Increase, any New Revolving Credit Commitments, each Extension Series of Extended Revolving Credit Commitments, and/or each Refinancing Series of Refinancing Revolving Credit Commitments and, in each case, the Credit Extensions made thereunder, as the context requires.

Revolving Credit Lender ” means, at any time, any Lender that has a Revolving Credit Commitment at such time or, if the Revolving Credit Commitments have terminated, any Revolving Credit Exposure.

Revolving Credit Loans ” means any Multicurrency Revolving Credit Loans, any Incremental Revolving Credit Loans, any Extended Revolving Credit Loans and/or any Refinancing Revolving Credit Loans, as the context requires.

Revolving Credit Note ” means a promissory note of the applicable Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially the form of Exhibit D-2 hereto, evidencing the aggregate Indebtedness of the applicable Borrower to such Revolving Credit Lender resulting from the Revolving Credit Loans made by such Revolving Credit Lender to the applicable Borrower.

S&P ” means Standard & Poor’s Ratings Services, a division of Standard & Poor’s Financial Services LLC, a subsidiary of McGraw Hill Financial, Inc., and any successor to its credit ratings business.

Same Day Funds ” means disbursements and payments in immediately available funds.

Sanctions Laws and Regulations ” means (i) any sanctions or requirements imposed by, or based upon the obligations or authorities set forth in, the Executive Order, the USA Patriot Act, the U.S. International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.), the U.S. Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), the U.S. Syria Accountability and Lebanese Sovereignty Act, the U.S. Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act of 2012, or the Iran Threat Reduction and Syria Human Rights Act of 2012, all as amended, or any of the foreign assets control regulations (including but not limited to 31 C.F.R., Subtitle B, Chapter V, as amended) or any other law or executive order relating thereto administered by the U.S. Department of the Treasury Office of Foreign Assets Control (“ OFAC ”), and any similar law, regulation, or Executive Order enacted in the United States after the date of this Agreement, (ii) any sanctions or requirements imposed under similar laws or regulations enacted by the European Union, the United Kingdom or Australia and (iii) any similar Law of any jurisdiction other than the United States, in each case, applicable to the Parent or any Consolidated Party.

Screen Rate ” has the meaning set forth in the definition of “LIBOR Rate”.

SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

Secured Hedge Agreement ” means any Swap Contract permitted under Article  VII that is entered into by and between the Parent or any Restricted Subsidiary and any Bank, to the extent designated by the Parent and such Bank as a “Secured Hedge Agreement” in writing to the Administrative Agent. The designation of any Secured Hedge Agreement shall not create in favor of such Bank any rights in connection with the management or release of Collateral or of the obligations of any Guarantor under the Loan Documents.

 

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Secured Obligations ” means, collectively, the Obligations, the Cash Management Obligations and all obligations owing to the Secured Parties by any Consolidated Party under any Secured Hedge Agreement (but excluding in any event Excluded Swap Obligations).

Secured Parties ” means, collectively, the Administrative Agent, the Collateral Agent, each other Agent, each L/C Issuer, each other Lender, each Bank and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section  9.05 .

Securities Act ” means the Securities Act of 1933, as amended.

Seller ” has the meaning set forth in the preliminary statements to this Agreement.

Senior Representative ” means, with respect to any series of Permitted Junior Priority Refinancing Debt, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.

Solvent ” means that (i) the fair value of the assets (on a going concern basis) of the Parent and its Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise as they become due in the ordinary course of business; (ii) the present fair saleable value of the property (on a going concern basis) of the Parent and its Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured in the ordinary course of business; (iii) the Parent and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured in the ordinary course of business; and (iv) the Parent and its Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business contemplated as of the date hereof for which they have unreasonably small capital. For the purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, would reasonably be expected to become an actual and matured liability in the ordinary course of business.

SPC ” has the meaning set forth in Section  10.07(h) .

Specified Representations ” means the representations and warranties with respect to the Loan Parties set forth in Sections 5.01(a) (with respect to the organizational existence of the Loan Parties only), 5.01(b)(ii) , 5.02(a) (with respect to the due authorization, execution and delivery and performance by the Loan Parties of the Loan Documents), 5.02(b)(i) , 5.04 , 5.12 , 5.16 , 5.17(c) and, subject to the proviso contained in Section  4.01(a)(vi) hereto, 5.18 of this Agreement.

Specified Transaction ” means any Investment that results in a Person becoming a Restricted Subsidiary, any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, any Permitted Acquisition or any Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Equity Interests of, another Person or any Disposition of a business unit, line of business or division of the Parent or a Restricted Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise, and any Permitted Reorganization or any incurrence or repayment of Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility or line of credit), Restricted Payment, Revolving Credit Commitment Increase, New Revolving Credit Commitment, Incremental Revolving Credit Loan or Incremental Term Loan that by the terms of this Agreement requires such test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect”.

 

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Spot Rate ” for a currency means the rate determined by the Administrative Agent or L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; provided , further , that L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency; provided , further , that (i) in the case of Euro denominated Loans, such delivery shall be two (2) Business Days later and (ii) in the case of Sterling denominated Loans, such delivery shall be one (1) Business Day later.

stated amount ” or “ stated amounts ” means (i) with respect to any Letter of Credit issued in U.S. Dollars, the stated or face amount of such Letter of Credit to the extent available at the time for drawing (subject to presentment of all requisite documents), and (ii) with respect to any Letter of Credit issued in any currency other than U.S. Dollars, the U.S. Dollar Equivalent of the stated or face amount of such Letter of Credit to the extent available at the time for drawing (subject to presentment of all requisite documents), in either case as the same may be increased or decreased from time to time in accordance with the terms of such Letter of Credit.

Statutory Reserve Requirements ” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board of Governors of the Federal Reserve System of the United States and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation D of the Board). LIBOR Rate Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in Regulation D of the Board) and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to the Administrative Agent or any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

Sterling ” or “ £ ” means the lawful currency of the United Kingdom.

Subsequent Transaction ” has the meaning set forth in Section  1.08 .

Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which (i) a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency that has not yet happened) are at the time beneficially owned, (ii) more than half of the issued share capital is at the time beneficially owned, (iii) the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person or (iv) in respect of any entity incorporated or established in Jersey, a subsidiary within the meaning of articles 2 and 2A of the Companies (Jersey) Law 1991; provided that notwithstanding the foregoing, the term “Subsidiary” shall not include any Investment Vehicle. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent.

 

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Subsidiary Guarantee ” means that certain Subsidiary Guarantee, dated as of the Closing Date, by the Subsidiary Guarantors party thereto in favor of the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit A-2 attached hereto.

Subsidiary Guarantor ” means any Guarantor that is not U.S. Midco or the Parent.

Supplier ” has the meaning assigned to that term in Section  3.01(h)(ii) .

Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.

Swap Obligation ” has the meaning set forth in the definition of “Excluded Swap Obligation”.

Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause  (a) , the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

Target Person ” has the meaning set forth in Section  7.02 .

Target Share SIA ” means that certain Jersey law security interest agreement, substantially in the form of Exhibit F-3 attached hereto.

Taxes ” means all present or future taxes, duties, levies, imposts, deductions, assessments, fees or withholdings (including backup withholding), or other charges imposed by any Governmental Authority including interest, penalties and additions to tax applicable thereto.

Term Borrowing ” means a borrowing consisting of Term Loans of the same Type and, in the case of LIBOR Rate Loans, having the same Interest Period, made by each of the Term Lenders pursuant to Section  2.01(a) , or under any Incremental Amendment, Extension Amendment, Refinancing Amendment, or Replacement Term Loans Amendment.

 

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Term Commitment ” means, as to each Term Lender, its obligation to make a Term Loan to a Borrower hereunder, expressed as an amount representing the maximum principal amount of the Term Loan to be made by such Term Lender under this Agreement, as such commitment may be (a) reduced from time to time pursuant to Section  2.06 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Term Lender pursuant to an Assignment and Assumption, (ii) an Incremental Amendment, (iii) a Refinancing Amendment, (iv) an Extension Amendment or (v) Replacement Term Loans Amendment. The initial amount of each Term Lender’s Term Commitment is set forth on Schedule 1.01(a) under the caption “Initial Term A Commitment” or, otherwise, in the Assignment and Assumption, Incremental Amendment, Extension Amendment, Refinancing Amendment, or Replacement Term Loans Amendment pursuant to which such Lender shall have assumed its Term Commitment, as the case may be.

Term Facility ” means (a) prior to the Closing Date, the Initial Term A Commitments and (b) thereafter, each Class of Term Loans and/or Term Commitments.

Term Lender ” means, at any time, any Lender that has (a) an Initial Term A Commitment, Incremental Term Commitment or Refinancing Term Commitment or (b) a Term Loan at such time.

Term Loan ” means any Initial Term A Loan, Extended Term Loan, Incremental Term Loan, Refinancing Term Loan or Replacement Term Loan, as the context may require.

Term Loan Extension Request ” has the meaning set forth in Section  2.16(a) .

Term Loan Extension Series ” has the meaning set forth in Section  2.16(a) .

Term Loan Increase ” has the meaning set forth in Section  2.14(a) .

Term Note ” means a promissory note of any Borrower payable to any Term Lender or its registered assigns, in substantially the form of Exhibit D-1 hereto, evidencing the aggregate Indebtedness of that Borrower to such Term Lender resulting from the Term Loans made by such Term Lender.

Test Period ” means, for any date of determination under this Agreement, the four consecutive fiscal quarters of the Parent most recently ended as of such date of determination for which financial statements have been delivered (or are required to be delivered) pursuant to Section  6.01(a) or (b) , as applicable.

Threshold Amount ” means $25,000,000.

Total Assets ” means the total assets of the Consolidated Parties on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the Parent delivered pursuant to Section  6.01(a) or (b) , or, prior to the first delivery (or required delivery) of financial statements under Section  6.01(a) or (b) , on the balance sheet of the Parent as of December 31, 2017.

Total Available Multicurrency Revolving Credit Commitment ” means, at the time any determination thereof is made, the sum of the Available Multicurrency Revolving Credit Commitments of the Lenders at such time.

Total Leverage Ratio ” means, with respect to any Test Period, the ratio of (a) Consolidated Total Debt as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period.

 

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Total Outstandings ” means the aggregate Effective Amount of all Loans and all L/C Obligations.

Transaction Expenses ” means any fees or expenses incurred or paid by the Parent or any Consolidated Party in connection with the Transactions (including expenses in connection with hedging and currency conversion transactions), this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby.

Transactions ” means (a) the execution and delivery of the Loan Documents to be entered into on the Closing Date and the funding of the Loans on the Closing Date, (b) the consummation of the Acquisition and the other related transactions contemplated by the Acquisition Agreement, (c) the consummation of the Closing Date Contribution and (d) the payment of fees and expenses incurred in connection therewith.

Treasury Services Agreement ” means any agreement between any Consolidated Party and any Bank relating to treasury, depository, credit card, debit card and cash management services or automated clearinghouse transfer of funds or any similar services.

Treaty ” has the meaning set forth in the definition of “UK Treaty State.”

Type ” means, with respect to a Loan, its character as an ABR Loan or a LIBOR Rate Loan.

UK Corporation Tax Act ” means the Corporation Tax Act 2009 of the United Kingdom.

UK Direction ” has the meaning set forth in clause (c)(iii) of the definition of “Excluded Taxes”.

UK DTTP Filing ” means an HMRC Form DTTP2 duly completed and filed by the relevant Loan Party, which:

(a)    where it relates to a UK Treaty Lender that is a Lender on the date of this Agreement, contains the scheme reference number and jurisdiction of tax residence opposite that Lender’s name in Schedule 1.01(b) , and

(i)    where the Loan Party is a Loan Party on the date of this Agreement, is filed with HMRC within 30 Business Days after the date of this Agreement; or

(ii)    where the Loan Party becomes a Loan Party after the date of this Agreement, is filed with HMRC within 30 Business Days after the date on which that Loan Party becomes an additional Borrower under this Agreement; or

(b)    where it relates to a UK Treaty Lender that becomes a Lender after the Closing Date, contains the scheme reference number and jurisdiction of tax residence in the relevant Assignment and Assumption, and

(i)    where the Loan Party is a Loan Party on the date such UK Treaty Lender becomes a Lender under this Agreement (“ New Lender Date ”), is filed with HMRC within 30 Business Days after the New Lender Date; or

(ii)    where the Loan Party becomes a Loan Party under this Agreement after the New Lender Date, is filed with HMRC within 30 Business Days after the date on which that Loan Party becomes a Loan Party under this Agreement.

 

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UK DTTP Scheme ” has the meaning assigned to that term in Section  3.01(d)(iii)(B) .

UK ITA ” means the Income Tax Act 2007 of the United Kingdom.

UK Qualifying Lender ” means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is:

(a)    a Lender:

(i)    which is a bank (as defined for the purpose of section 879 of the UK ITA making an advance under a Loan Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payment apart from section 18A of the UK Corporation Tax Act; or

(ii)    in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the UK ITA) at the time that that advance was made and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

(b)    a Lender which is:

(i)    a company resident in the United Kingdom for United Kingdom tax purposes;

(ii)    a partnership each member of which is (A) a company resident in the United Kingdom or (B) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the UK Corporation Tax Act) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the UK Corporation Tax Act;

(iii)    a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the UK Corporation Tax Act) of that company; or

(c)    a UK Treaty Lender.

UK Security Agreement ” means that certain English law security agreement, substantially in the form of Exhibit F-4 attached hereto.

UK Security Documents ” means the UK Security Agreement and any other Collateral Document from time to time executed by any Loan Party governed by the laws of England and Wales.

UK Security Trustee ” means Credit Suisse AG, Cayman Islands Branch in its capacity as the UK Security Trustee under the UK Security Documents or any successor UK Security Trustee.

 

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UK Tax Confirmation ” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document is either:

(a)    a company resident in the United Kingdom for United Kingdom tax purposes;

(b)    a partnership each member of which is (A) a company resident in the United Kingdom or (B) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the UK Corporation Tax Act) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the UK Corporation Tax Act; or

(c)    a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (for the purposes of section 19 of the UK Corporation Tax Act) of that company.

UK Tax Deduction ” has the meaning set forth in the definition of “Excluded Taxes”.

UK Treaty Lender ” means a Lender which is treated as a resident of a UK Treaty State for the purposes of the Treaty, does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected and meets all other conditions in the Treaty for full exemption from tax imposed by the United Kingdom, except that for this purpose it shall be assumed that there is no special relationship between the relevant Loan Party and the Lender or between both of them and another person, that any condition which relates (expressly or by implication) to the amounts or terms of any Loan or terms of the Loan Documents or to any other matter which is outside the exclusive control of that Lender is satisfied, and that any necessary procedural formalities are satisfied.

UK Treaty State ” means a jurisdiction having a double taxation agreement (a “ Treaty ”) with the United Kingdom, which makes provision for full exemption from tax imposed by the United Kingdom on interest.

Unfunded Participations ” shall mean, with respect to an L/C Issuer, the aggregate amount, if any, of participations in respect of any outstanding L/C Disbursement that shall not have been funded by the Revolving Credit Lenders in accordance with Section  2.03(c) .

Uniform Commercial Code ” or “ UCC ” means (i) the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or (ii) the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it applies to any item or items of Collateral. References in this Agreement and the other Loan Documents to specific sections of the Uniform Commercial Code are based on the Uniform Commercial Code as in effect in the State of New York on the date hereof. In the event such Uniform Commercial Code is amended or another Uniform Commercial Code described in clause  (ii) is applicable, such section reference shall be deemed to be references to the comparable section in such amended or other Uniform Commercial Code.

United States Tax Compliance Certificate ” has the meaning set forth in Section  3.01(d)(ii)(C) .

Unreimbursed Amount ” has the meaning set forth in Section  2.03(c)(i) .

Unrestricted Subsidiary ” means any (x) any Subsidiary set forth on Part D of Schedule I on the Closing Date and (y) any Subsidiary of the Parent designated by the Parent as an Unrestricted Subsidiary pursuant to Section  6.14 subsequent to the Closing Date.

 

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U.S. ” and “ United States ” means the United States of America.

USA Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as amended, reauthorized or otherwise modified from time to time.

U.S. Borrower ” has the meaning set forth in the preamble to this Agreement.

U.S. Dollar ” and “ $ ” means lawful money of the United States of America.

U.S.  Dollar Equivalent ” means, at any time, (a) as to any amount denominated in U.S. Dollars, the amount thereof at such time and (b) as to any amount denominated in any other currency, the equivalent amount in U.S. Dollars as determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of U.S. Dollars with such other currency on the most recent Computation Date provided for in Section  2.04(a) .

U.S. Intellectual Property Security Agreement ” has the meaning set forth in the U.S. Security Agreement.

U.S. Intercompany Note ” means a promissory note substantially in the form of Exhibit G .

U.S. Loan Party ” means any Loan Party organized or formed in the United States or any State thereof or the District of Columbia and any other Person that is a U.S. Person.

U.S. Midco ” has the meaning set forth in the preamble to this Agreement.

U.S. Person ” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

U.S. Security Agreement ” means a New York law security agreement, dated as of the Closing Date, substantially in the form of Exhibit F-1 .

U.S. Security Agreement Supplement ” has the meaning set forth in the U.S. Security Agreement.

U.S. Subsidiary ” means any Subsidiary that is organized under the laws of the United States of America or any state thereof or the District of Columbia other than any such Subsidiary that is (i) a Subsidiary of a CFC or (ii) a CFC Holding Company.

VAT ” means (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere (including, without limitation, goods and services tax in Jersey as provided for under the Goods and Services Tax (Jersey) Law 2007).

Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required scheduled payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal amount of such Indebtedness.

 

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wholly-owned ” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or more wholly-owned Subsidiaries of such Person.

Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Section 1.02.     Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a)    The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

(b)    The words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

(c)    Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.

(d)    The terms “include,” “includes” and “including” are by way of example and not limitation.

(e)    The word “or” is not exclusive.

(f)    The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

(g)    In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”.

(h)    Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

(i)    For purposes of determining compliance with any Section of Article  VII at any time, in the event that any Lien, Investment, Indebtedness (whether at the time of incurrence or upon application of all or a portion of the proceeds thereof), Disposition, Restricted Payment, Restricted Debt Payment, Affiliate transaction, Contractual Obligation or prepayment of Indebtedness meets the criteria of one or more than one of the categories of transactions permitted pursuant to any clause of such Sections, such transaction (or portion thereof) at any time shall be permitted under one or more of such clauses as determined by the Parent in its sole discretion at such time.

 

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(j)    All references to “knowledge” of any Loan Party or a Restricted Subsidiary means the actual knowledge of a Responsible Officer.

(k)    The words “asset” and “property” shall be construed as having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(l)    All references to any Person shall be constructed to include such Person’s successors and assigns (subject to any restriction on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all of the functions thereof.

Section 1.03.     Accounting Terms . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, except as otherwise specifically prescribed herein. Notwithstanding any other provision contained herein, (a) any lease that is or would be treated as an operating lease for purposes of GAAP as of the date hereof shall not be treated as Indebtedness, Attributable Indebtedness or as a Capitalized Lease and shall continue to be treated as an operating lease (and any future lease, if it were in effect on the date hereof, that would be treated as an operating lease for purposes of GAAP as of the date hereof shall be treated as an operating lease), in each case for purposes of this Agreement, notwithstanding any actual or proposed change in GAAP after the date hereof and (b) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) Statement of Financial Accounting Standards 141R or ASC 805 (or any other financial accounting standard having a similar result or effect) or (ii) any election under Financial Accounting Standards Codification No. 825 – Financial Instruments, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Indebtedness of any Consolidated Party at “fair value” as defined therein.

Section 1.04.     Rounding . Any financial ratios required to be maintained by the Parent pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).

Section 1.05.     References to Agreements, Laws, Etc . Unless otherwise expressly provided herein, for purposes of the Loan Documents (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, refinancings, restatements, renewals, restructurings, extensions, supplements and other modifications thereto, but only to the extent that such amendments, refinancings, restatements, renewals, restructurings, extensions, supplements and other modifications are not prohibited by the Loan Documents; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

Section 1.06.     Times of Day . Unless otherwise specified herein or therein, all references in any Loan Document to times of day shall be references to Eastern time (daylight or standard, as applicable).

Section 1.07.     Timing of Payment or Performance . Except as otherwise expressly provided herein or therein, when the payment of any obligation or the performance of any covenant, duty or obligation under any Loan Document is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of “Interest Period”) or performance shall extend to the immediately succeeding Business Day.

 

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Section 1.08.     Limited Condition Transactions . In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:

(a)    determining compliance with any provision of this Agreement (other than the financial covenant set forth under Section  7.10 , the definition of “Applicable Facility Fee Percentage” and the definition of “Applicable Margin”) that requires the calculation of any financial ratio or test, including the Total Leverage Ratio (and, for the avoidance of doubt, the financial ratios set forth in Sections 2.14(d) , 7.02(q) , 7.03(g) , 7.03(s) , 7.06(c) , 7.06(f) and 7.12(a)(v) ); or

(b)    testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA or Total Assets);

in each case, at the option of the Parent (the Parent’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 for such Limited Condition Transaction are entered into (or, in respect of any transaction described in clauses (ii) or (iii) of the definition of a Limited Condition Transaction, the date of delivery of irrevocable notice of repayment or prepayment, declaration of dividend or similar event (and not at the time of consummation of such Limited Condition Transaction)) (the “ LCT Test Date ”), and 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) on a Pro Forma Basis as if they had occurred at the beginning of the most recent Test Period ended prior to the LCT Test Date (for income statement purposes) or at the end of such most recent Test Period (for balance sheet purposes), the Parent would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Parent has made an LCT Election and any of the ratios, tests 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, test or basket, including due to fluctuations in Consolidated EBITDA or Total Assets of the Consolidated Parties or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Parent has made an LCT Election for any Limited Condition Transaction, then in connection with any calculation of any ratio, test or basket availability with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any Investment, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Subsidiary (a “ Subsequent Transaction ”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement or irrevocable notice of repayment or prepayment, declaration of dividend or similar event for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied 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 1.09.     Pro Forma Calculations .

(a)    Notwithstanding anything to the contrary herein, financial ratios and tests, including the Total Leverage Ratio shall be calculated in the manner prescribed by this Section  1.09 ; provided that notwithstanding anything to the contrary in clauses (b) , (c) or (d)  of this Section  1.09 , when

 

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calculating the Total Leverage Ratio for purposes of determining actual compliance (as opposed to determining pro forma compliance, compliance on a Pro Forma Basis or compliance giving Pro Forma Effect to a transaction for purposes of another provision) with the financial covenant tests in Section  7.10 , the events described in this Section  1.09 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect. Whenever a financial ratio or test is to be calculated on a pro forma basis or giving pro forma effect to a transaction and any related incurrence(s) of Indebtedness, the reference to the “Test Period” for purpose of calculating such financial ratio or test shall be deemed to be a reference to, and shall be based on, the most recently ended Test Period for which financial statements have been delivered prior to the relevant date of determination.

(b)    For purposes of calculating any financial ratio or test, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection with therewith) that have been made (i) during the applicable Test Period or (ii) subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of the determination of Total Assets, the last day). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Parent or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section  1.09 , then such financial ratio or test (or the calculation of Total Assets) shall be calculated to give pro forma effect thereto in accordance with this Section  1.09 .

(c)    Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Parent and include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating improvements, operating expense reductions and other similar initiatives and synergies projected by the Parent in good faith to result from actions that have been taken (including prior to completion of any Specified Transactions or such events or initiatives) or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Parent) within 24 months after such Specified Transaction (calculated on a pro forma basis as though such cost savings, operating improvements, operating expense reductions and other similar initiatives and synergies had been realized on the first day of such period and as if such cost savings, operating improvements, operating expense reductions and other similar initiatives and synergies were realized during the entirety of such period) and “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions, and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests and during any subsequent Test Period in which the effects thereof are expected to be realized relating to such Specified Transaction; provided that (A) such amounts are reasonably identifiable and factually supportable (in the good faith determination of the Parent and subject to certification by a Responsible Officer of the Parent) and calculated on a pro forma basis net of the amount of actual benefits realized during such period from such actions and (B) no amounts shall be added pursuant to this Section  1.09(c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA, whether through a pro forma adjustment or otherwise, with respect to such period.

(d)    Notwithstanding anything to the contrary herein, when calculating the Total Leverage Ratio on a Pro Forma Basis for purposes of Section  2.14(d)(iii)(B) or 7.03(s)(B) , any Indebtedness that is incurred substantially contemporaneously therewith under any other provision of Section  2.14 or Section  7.03(s) shall be disregarded.

 

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Section 1.10.     Letters of Credit . Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the amount available to be drawn under such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

Section 1.11.     Certifications . All certifications made or to be made hereunder by an officer or representative of a Loan Party shall be made (and deemed made) by such person in his or her capacity solely as an officer or a representative of such Loan Party, on such Loan Party’s behalf and not in such Person’s individual capacity.

Section 1.12.     Calculation of Exchange Rate . On each Exchange Rate Determination Date, the Administrative Agent shall (a) determine the Exchange Rate as of such Exchange Rate Determination Date and (b) give notice thereof (i) to each Borrower and (ii) to each Lender that shall have requested such information. The Exchange Rates so determined shall become effective on the first Business Day immediately following the relevant Exchange Rate Determination Date (each, a “ Reset Date ”) and shall remain effective until the next succeeding Reset Date, and shall for all purposes of this Agreement (other than any provision expressly requiring the use of a current Exchange Rate) be the Exchange Rate employed in converting amounts between U.S. Dollars or Alternative Currencies.

Section 1.13.     Cashless Settlement . Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with any Incremental Term Loan, any Refinancing Loan, any Replacement Term Loan, any Refinancing Commitment, any Extended Loan or any Extended Commitment or loans incurred under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement hereunder or any other Loan Document that such payment be made “in U.S. Dollars”, “in Alternative Currencies”, “in immediately available funds”, “in Cash” or any other similar requirement. Notwithstanding anything to the contrary set forth in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent, the assignor Lender and the assignee of such Lender.

Section 1.14.     Jersey Terms . In each Loan Document, where it relates to a person: (i) incorporated; (ii) established; (iii) constituted; (iv) formed; or (v) having its “centre of main interests” (as that term is used in Article 3(1) of The Council of the European Union No.1346/2000) on Insolvency Proceedings), in each case, in Jersey, a reference to:

(a)    a composition, compromise, assignment or arrangement with any creditor, winding up, liquidation, administration, dissolution, insolvency event or insolvency includes, without limitation, bankruptcy (as that term is interpreted pursuant to Article 8 of the Interpretation (Jersey) Law 1954), a compromise or arrangement of the type referred to in Article 125 of the Companies (Jersey) Law 1991 and any procedure or process referred to in Part 21 of the Companies (Jersey) Law 1991;

 

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(b)    a liquidator, receiver, administrative receiver, administrator or the like includes, without limitation, the Viscount of the Royal Court of Jersey, Autorisés or any other person performing the same function of each of the foregoing;

(c)    Security or a security interest includes, without limitation, any hypothèque whether conventional, judicial or arising by operation of law and any security interest created pursuant to the Security Interests (Jersey) Law 1983 or Security Interests (Jersey) Law 2012 and any related legislation; and

(d)    any analogous proceedings or step being taken in connection with insolvency includes any corporate action, legal proceedings or other formal procedure or formal step being taken in relation to an application for a declaration of en désastre being made in respect of any such entity or any of its assets (or the making of such declaration).

Section 1.15.     LIBOR Discontinuation . Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, if the LIBOR Rate for any Interest Period is not available at any time for any reason, then the LIBOR Rate for such Interest Period shall be a comparable or successor floating rate that is, at such time, broadly accepted by the syndicated loan market for loans denominated in Dollars in lieu of the LIBOR Rate as reasonably determined by the Administrative Agent with the consent of the Parent (not to be unreasonably withheld); provided , that in the case such consent is withheld by the Parent, the rate shall be determined in accordance with Section  3.03 , or if no such broadly accepted comparable successor rate exists at such time, a successor index rate as the Administrative Agent may determine with the consent of the Parent and the Required Lenders; provided that (i) any such successor rate shall be applied by the Administrative Agent in a manner consistent with market practice and (ii) to the extent such market practice is not administratively feasible for the Administrative Agent, such successor rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent in consultation with the Parent.

ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

Section 2.01.     The Loans .

(a)     Term Borrowings . Subject to the terms and conditions expressly set forth herein, each Term Lender severally agrees to make to the English Borrower term A loans consisting of one or more Term Borrowings denominated in U.S. Dollars in an aggregate amount not to exceed at any time outstanding the amount of such Term Lender’s Initial Term A Commitment. Amounts borrowed under this Section  2.01(a) and repaid or prepaid may not be re-borrowed. Initial Term A Loans may be ABR Loans or LIBOR Rate Loans, as further provided herein.

(b)     Multicurrency Revolving Credit Borrowings . Subject to the terms and conditions expressly set forth herein, on and after the Closing Date each Multicurrency Revolving Credit Lender severally agrees to make multicurrency revolving credit loans, denominated in U.S. Dollars or an Alternative Currency, to the Borrowers pursuant to Section  2.02 and, if applicable, Section  2.04 (each such loan, together with any multicurrency revolving credit loans made pursuant to an Extended Revolving Credit Commitment, any multicurrency revolving credit loans made pursuant to a Revolving Credit Commitment Increase and any multicurrency revolving credit loans made pursuant to a Refinancing Revolving Credit Commitment, a “ Multicurrency Revolving Credit Loan ”), from time to time on any Business Day during the Availability Period, in an aggregate principal amount not to exceed at any time outstanding (x) the amount of such Lender’s Multicurrency Revolving Credit Commitment at

 

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such time and (y) such Lender’s Multicurrency Revolving Credit Pro Rata Share of the Total Available Multicurrency Revolving Credit Commitments. Within the limits of each Lender’s Multicurrency Revolving Credit Commitment, and subject to the other terms and conditions hereof, each Borrower may borrow under this Section  2.01(b) , prepay under Section  2.05 , and re-borrow under this Section  2.01(b) in each case without premium or penalty (subject to Section  3.05 ). Multicurrency Revolving Credit Loans denominated in U.S. Dollars may be ABR Loans or LIBOR Rate Loans, and Multicurrency Revolving Credit Loans denominated in an Alternative Currency may be LIBOR Rate Loans only, in each case as further provided herein. All Multicurrency Revolving Credit Loans comprising the same Revolving Credit Borrowing hereunder shall be made by the Multicurrency Revolving Credit Lenders simultaneously and in proportion to their respective Multicurrency Revolving Credit Commitments.

Section 2.02.     Borrowings, Conversions and Continuations of Loans .

(a)    Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Type to the other, and each continuation of LIBOR Rate Loans shall be made upon the applicable Borrower’s notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent (1) not later than 1:00 p.m. New York City time, or 11:00 a.m. London time in the case of any Borrowing denominated in an Alternative Currency (other than Euros), or 11:00 a.m. Brussels time in the case of any Borrowing denominated in Euros, three (3) Business Days prior to the requested date of any Borrowing or continuation of LIBOR Rate Loans or, in the case of any Loans denominated in U.S. Dollars, any conversion of ABR Loans to LIBOR Rate Loans, and (2) not later than 1:00 p.m. New York City time on the requested date of any Borrowing or continuation of ABR Loans denominated in U.S. Dollars; provided that the notice referred to in clause  (1) above may be delivered no later than one (1) Business Day prior to the Closing Date in the case of the initial Credit Extensions to be made on the Closing Date. Each telephonic notice by the applicable Borrower pursuant to this Section  2.02(a) must be confirmed promptly by delivery (including via email) to the Administrative Agent of a written Committed Loan Notice (and will not be effective until so confirmed), appropriately completed and signed by a Responsible Officer of the applicable Borrower. Except as otherwise provided in Section  2.14 , each Borrowing of, conversion to or continuation of LIBOR Rate Loans shall be in a minimum principal amount of $2,000,000 (or, with respect to any Loans denominated in an Alternative Currency, the U.S. Dollar Equivalent thereof), or a whole multiple of $1,000,000 (or, with respect to any Loans denominated in an Alternative Currency, the U.S. Dollar Equivalent thereof), in excess thereof (or, if less, the then Total Available Multicurrency Revolving Commitment or the total available Term Commitment for the applicable Term Facility, as applicable). Except as provided herein, each Borrowing of or conversion to ABR Loans denominated in U.S. Dollars shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the applicable Borrower is requesting a Term Borrowing, a Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit Loans from one Type to the other (which conversion option shall only be available in respect of Loans denominated in U.S. Dollars) or a continuation of LIBOR Rate Loans and the Facility under which such Borrowing is being requested, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued (stated in the relevant currency), (iv) the Type of Loans to be borrowed or to which existing Term Loans or Revolving Credit Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto, (vi) with respect to any LIBOR Rate Loans, the Applicable Currency and (vii) wire instructions of the account(s) to which funds are to be disbursed (it being understood, for the avoidance of doubt, that the amount to be disbursed to any particular account may be less than the minimum or multiple limitations set forth above so long as the aggregate amount to be disbursed to all such accounts pursuant to such Borrowing meets such minimums and multiples). With respect to Loans denominated in U.S. Dollars, if the applicable Borrower fails to specify a Type of Loan in a Committed Loan Notice or, then the

 

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applicable Term Loans or Revolving Credit Loans shall be made as, or converted to, ABR Loans ( provided that with respect to any failure to give a timely notice requesting a conversion or continuation of a LIBOR Rate Loan denominated in an Alternative Currency, in such event such Loan shall be continued as a LIBOR Rate Loan with an Interest Period of one month. Any such automatic conversion to ABR Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Rate Loans. If the applicable Borrower requests a Borrowing of, conversion to, or continuation of LIBOR Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period (or fails to give a timely notice requesting a continuation of LIBOR Rate Loans denominated in an Alternative Currency), it will be deemed to have specified an Interest Period of one month.

(b)    Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share or other applicable share provided for under this Agreement of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to ABR Loans or continuation described in Section  2.02(a) . In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 3:00 p.m. (New York City time), in the case of any Loan denominated in U.S. Dollars, not later than 2:00 p.m. (London time) in the case of any Loan denominated in an Alternative Currency (other than Euros) and not later than 1:00 p.m. (Brussels time) in the case of any Loan denominated in Euros, in each case, on the Business Day specified in the applicable Committed Loan Notice. The Administrative Agent shall make all funds so received available to the applicable Borrower in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided by the applicable Borrower to (and reasonably acceptable to) the Administrative Agent; provided that if, on the date the Committed Loan Notice with respect to such Borrowing is given by the applicable Borrower, there are L/C Borrowings of that Borrower outstanding, then the proceeds of the Borrowing shall be applied, first , to the payment in full of any such L/C Borrowing and second , to the applicable Borrower as provided above.

(c)    Except as otherwise provided herein, a LIBOR Rate Loan may be continued or converted only on the last day of an Interest Period for such LIBOR Rate Loan unless the Borrower of that LIBOR Rate Loan pays the amount due, if any, under Section  3.05 in connection therewith. During the occurrence and continuation of an Event of Default, the Administrative Agent or the Required Lenders may require by written notice to the Borrower that no Loans may be converted to or (except in the case of Loans denominated in Alternative Currency as provided above) continued as LIBOR Rate Loans.

(d)    The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any Interest Period for LIBOR Rate Loans upon determination of such interest rate. The determination of the LIBOR Rate by the Administrative Agent shall be conclusive in the absence of manifest error.

(e)    After giving effect to all Term Borrowings, all Revolving Credit Borrowings, all conversions of Term Loans or Revolving Credit Loans from one Type to the other, and all continuations of Term Loans or Revolving Credit Loans as the same Type, there shall not be more than eight Interest Periods in effect (or such greater amount as may be agreed by the Administrative Agent in its sole discretion).

(f)    The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.

 

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(g)    Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s Pro Rata Share or other applicable share provided for under this Agreement of such Borrowing, the Administrative Agent may assume that such Lender has made such Pro Rata Share or other applicable share provided for under this Agreement available to the Administrative Agent on the date of such Borrowing in accordance with Section  2.02(b) above, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available, then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, each of such Lender and each of the Borrowers severally agree to repay to the Administrative Agent promptly after written demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the applicable Borrower until the date such amount is repaid to the Administrative Agent at (i) in the case of the applicable Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Overnight Rate plus any administrative, processing or similar fees customarily charged by the Administrative Agent in accordance with the foregoing. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this Section  2.02(g) shall be conclusive in the absence of manifest error. If the applicable Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the applicable Borrower the amount of such interest paid by such Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the applicable Borrower shall be without prejudice to any claim the applicable Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

(h)    Each Lender at its option may make any LIBOR Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the applicable Borrower to repay such Loan in accordance with the terms of this Agreement, (ii) such LIBOR Rate Loan shall be deemed to have been made and held by such Lender, and the obligation of the applicable Borrower to repay such LIBOR Rate Loan shall nevertheless be to such Lender for the account of such domestic or foreign branch or Affiliate of such Lender and (iii) in exercising such option, such Lender shall use reasonable efforts to minimize increased costs to the applicable Borrower resulting therefrom (which obligation of such Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it otherwise determines would be disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section  3.04 shall apply); provided , further , that any such domestic or foreign branch or Affiliate of such Lender shall not be entitled to any greater indemnification under Section  3.01 with respect to such LIBOR Rate Loan than that to which the applicable Lender was entitled on the date on which such Loan was made (except in connection with (x) withholding taxes imposed on amounts payable to or for the account of such domestic or foreign branch or Affiliate of such Lender with respect to such LIBOR Rate Loan, if such domestic or foreign branch or Affiliate of such Lender is a UK Treaty Lender which has confirmed its scheme reference number and jurisdiction of tax residence to the English Borrower and indicated that it wishes the UK DTTP Scheme to apply to this Agreement, HMRC has not yet responded to a UK DTTP Filing made in respect of such domestic or foreign branch or Affiliate of such Lender in relation to this Agreement (or such a UK DTTP Filing has not yet been made) and such Taxes would not be imposed if HMRC had given the relevant Loan Party authority to make payments to such domestic or foreign branch or Affiliate of such Lender without a UK Tax Deduction and (y) any indemnification entitlement arising as a result of a change in law after the date on which such Loan was made to the extent the applicable Lender would have been so entitled to such indemnification entitlement).

 

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Section 2.03.     Letters of Credit .

(a)     The Letter of Credit Commitment . (i) Subject to the terms and conditions expressly set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Multicurrency Revolving Credit Lenders set forth in this Section  2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit at sight denominated in U.S. Dollars or one or more Alternative Currencies for the account of the applicable Borrower or any Restricted Subsidiary of the Parent and to amend or renew Letters of Credit previously issued by it, in accordance with Section  2.03(b) , and (2) to honor drafts under the Letters of Credit and (B) the Multicurrency Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section  2.03 ; provided that no L/C Issuer shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lender’s Revolving Credit Commitment or (y) the Effective Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Letters of Credit will be issued by each L/C Issuer, in each case, at the direction of the U.S. Borrower, with the Letter of Credit exposure of each L/C Issuer to be subject to an individual sub-limit, which shall be the U.S. Dollar Equivalent of $7 million for Credit Suisse AG, Cayman Islands Branch and $3 million for Bank of America, N.A. or in such other amounts from time to time as otherwise mutually agreed to by each such L/C Issuer and the U.S. Borrower. Within the foregoing limits, and subject to the terms and conditions hereof, the ability of the Borrowers and the Restricted Subsidiaries to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers and the Restricted Subsidiaries may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired, terminated or that have been drawn upon and reimbursed.

(ii)    An L/C Issuer shall be under no obligation to issue any Letter of Credit if:

(A)    any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);

(B)    subject to Section  2.03(b)(iii) , the expiry date of such requested Letter of Credit would occur more than 12 months after the date of issuance or last renewal unless (1) each Appropriate Lender and the L/C Issuer has approved of such expiration date or (2) the L/C Issuer thereof has approved of such expiration date and the Effective Amount of L/C Obligations in respect of such requested Letter of Credit has been Cash Collateralized or backstopped in a manner reasonably satisfactory to such L/C Issuer;

(C)    the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless such Letter of Credit has been Cash Collateralized or backstopped in a manner reasonably satisfactory to such L/C Issuer;

 

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(D)    the issuance of such Letter of Credit would violate any policies of such L/C Issuer applicable to letters of credit generally; it being understood and agreed that neither Credit Suisse AG, Cayman Islands Branch, nor any of its affiliates shall be required to issue documentary or “trade” Letters of Credit (as opposed to “standby” Letters of Credit); and

(E)    any Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the applicable Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section  2.17(a)(iv) ) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure as it may elect in its sole discretion.

(iii)    An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

(iv)    Each L/C Issuer shall act on behalf of the Multicurrency Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to such L/C Issuer.

(b)     Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit . (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to an L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the applicable Borrower. Such Letter of Credit Application must be received by the relevant L/C Issuer and the Administrative Agent not later than 1:00 p.m. (New York City time) in the case of any Letter of Credit denominated in U.S. Dollars, or 11:00 a.m. (London time) in the case of any Letter of Credit denominated in an Alternative Currency (other than Euros), or 11:00 a.m. (Brussels time) in the case of any Letter of Credit denominated in Euros, at least three (3) Business Days prior to the proposed issuance date or date of amendment, as the case may be; or, in each case, such later date and time as the relevant L/C Issuer may agree in a particular instance in its sole discretion. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer: (a) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (b) the amount thereof; (c) the expiry date thereof; (d) the name and address of the beneficiary thereof; (e) the documents to be presented by such beneficiary in case of any drawing thereunder; (f) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (g) the currency in which the requested Letter of Credit will be denominated; and (h) such other matters as the relevant L/C Issuer may reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer: (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the relevant L/C Issuer may reasonably request.

 

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(ii)    Promptly after receipt of any Letter of Credit Application, the relevant L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the relevant L/C Issuer of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower (or its applicable Restricted Subsidiary) or enter into the applicable amendment, as the case may be. Immediately upon the issuance of each Letter of Credit, each Multicurrency Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the relevant L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Multicurrency Revolving Credit Pro Rata Share or other applicable share provided for under this Agreement multiplied by the U.S. Dollar Equivalent of the stated amount of such Letter of Credit.

(iii)    If the applicable Borrower so requests in any applicable Letter of Credit Application with respect to any standby Letter of Credit, the relevant L/C Issuer shall agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the relevant L/C Issuer to prevent any such extension at least once in each 12-month period (commencing with the date of issuance of such Letter of Credit and in no event extending beyond the Letter of Credit Expiration Date unless the L/C Issuer thereof has approved of such expiration date and such Letter of Credit has been Cash Collateralized or backstopped in a manner reasonably acceptable to the Administrative Agent and the applicable L/C Issuer) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such 12-month period to be mutually agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the relevant L/C Issuer, the applicable Borrower shall not be required to make a specific request to the relevant L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the relevant L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided that the relevant L/C Issuer shall not permit any such extension if (A) the relevant L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its extended form under the terms hereof (by reason of the provisions of Section  2.03(a)(ii) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is 7 Business Days before the Non-Extension Notice Date from the Administrative Agent, any Multicurrency Revolving Credit Lender or the applicable Borrower that one or more of the applicable conditions specified in Section  4.02 is not then satisfied or waived.

(iv)    Promptly after issuance of any Letter of Credit or any amendment to a Letter of Credit, the relevant L/C Issuer will also deliver to the applicable Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

(c)     Drawings and Reimbursements; Funding of Participations . (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the relevant L/C Issuer shall notify promptly the applicable Borrower and the Administrative Agent thereof. Not later than 1:00 p.m. (New York City time) (New York City time) in the case of any Letter of Credit denominated in U.S. Dollars, or 11:00 a.m. (London time) in the case of any Letter of Credit denominated in an Alternative Currency (other than Euros), or 11:00 a.m. (Brussels time) in the case of any Letter of Credit denominated in Euros, on the first Business Day immediately following any payment by an L/C Issuer under a Letter of Credit, with written notice to the applicable Borrower (each such date, an “ Honor

 

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Date ”), the applicable Borrower shall be liable to reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing in the relevant currency in which such Letter of Credit was denominated; provided that if such reimbursement is not made on the date of drawing, the applicable Borrower shall pay interest to the relevant L/C Issuer on such amount at the rate applicable to a LIBOR Rate Loan denominated in that currency with a one month Interest Period (without duplication of interest payable on L/C Borrowings). The applicable L/C Issuer shall notify the applicable Borrower in writing of the amount of the drawing promptly following the determination thereof. If the applicable Borrower fails to so reimburse such L/C Issuer at such time, the Administrative Agent shall promptly notify each Appropriate Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in U.S. Dollars in an amount equal to the U.S. Dollar Equivalent thereof in the case of any Letter of Credit denominated in an Alternative Currency) and the amount of any related but unpaid interest due in respect thereof pursuant to the foregoing provisions (the “ Unreimbursed Amount ”) and the amount of such Appropriate Lender’s Multicurrency Revolving Credit Pro Rata Share or other applicable share provided for under this Agreement thereof. In such event, (x) in the case of an Unreimbursed Amount denominated in U.S. Dollars, the applicable Borrower shall be deemed to have requested a Revolving Credit Borrowing of ABR Loans and (y) in the case of an Unreimbursed Amount denominated in an Alternative Currency, the applicable Borrower shall be deemed to have requested a Revolving Credit Borrowing of LIBOR Rate Loans with an Interest Period of one month, in each case to be disbursed on the Honor Date in an amount equal to such Unreimbursed Amount, without regard to the minimum and multiples specified in Section  2.02 for the principal amount of ABR Loans or LIBOR Rate Loans (as applicable) but subject to the amount of the Available Multicurrency Revolving Credit Commitments of the Appropriate Lenders and the conditions set forth in Section  4.02 (other than the delivery of a Committed Loan Notice). Any notice given by an L/C Issuer or the Administrative Agent pursuant to this Section  2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

(ii)    Each Appropriate Lender (including any Lender acting as an L/C Issuer) shall upon any notice pursuant to Section  2.03(c)(i) make funds available to the Administrative Agent for the account of the relevant L/C Issuer in U.S. Dollars or the applicable Alternative Currency at the Administrative Agent’s Office for payments in an amount equal to its Multicurrency Revolving Credit Pro Rata Share or other applicable share provided for under this Agreement of the Unreimbursed Amount not later than 1:00 p.m. (New York City time) (New York City time) in the case of any Letter of Credit denominated in U.S. Dollars, or 11:00 a.m. (London time) in the case of any Letter of Credit denominated in an Alternative Currency (other than Euros), or 11:00 a.m. (Brussels time) in the case of any Letter of Credit denominated in Euros, on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section  2.03(c)(iii) , each Appropriate Lender that so makes funds available shall be deemed to have made, (x) in the case of a Letter of Credit denominated in U.S. Dollars, a Multicurrency Revolving Credit Loan denominated in U.S. Dollars in the form of an ABR Loan or (y) in the case of a Letter of Credit denominated in an Alternative Currency, a Multicurrency Revolving Credit Loan denominated in the applicable Alternative Currency in the form of a LIBOR Rate Loan, as applicable, to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the relevant L/C Issuer.

(iii)    With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of ABR Loans denominated in U.S. Dollars or LIBOR Rate Loans for Letters of Credit denominated in an Alternative Currency, as the case may be, because the conditions set forth in Section  4.02 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the relevant L/C Issuer an L/C Borrowing in the amount (and in the relevant currency) of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on written demand (together with interest) and

 

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shall bear interest at the Default Rate for Revolving Credit Loans denominated in the applicable currency (which begins to accrue upon funding by the applicable L/C Issuer). In such event, each Appropriate Lender’s payment to the Administrative Agent for the account of the relevant L/C Issuer pursuant to Section  2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section  2.03 .

(iv)    Until each Appropriate Lender funds its Multicurrency Revolving Credit Loan or L/C Advance pursuant to this Section  2.03(c) to reimburse the relevant L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Multicurrency Revolving Credit Pro Rata Share or other applicable share provided for under this Agreement of such amount shall be solely for the account of the relevant L/C Issuer.

(v)    Each Multicurrency Revolving Credit Lender’s obligation to make Multicurrency Revolving Credit Loans or L/C Advances to reimburse an L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section  2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the relevant L/C Issuer, the applicable Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Multicurrency Revolving Credit Lender’s obligation to make Multicurrency Revolving Credit Loans pursuant to this Section  2.03(c) is subject to the conditions set forth in Section  4.02 (other than delivery by the applicable Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the applicable Borrower to reimburse the relevant L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.

(vi)    If any Multicurrency Revolving Credit Lender fails to make available to the Administrative Agent for the account of the relevant L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section  2.03(c) by the time specified in Section  2.03(c)(ii) , such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any reasonable administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. A certificate of the relevant L/C Issuer submitted to any Multicurrency Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this Section  2.03(c)(vi) shall be conclusive absent manifest error.

(d)     Repayment of Participations . (i) If, at any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Multicurrency Revolving Credit Lender such Lender’s L/C Advance in respect of such payment in accordance with Section  2.03(c) , the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the applicable Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Multicurrency Revolving Credit Pro Rata Share or other applicable share provided for under this Agreement thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the amount received by the Administrative Agent.

 

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(ii)    If any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section  2.03(c)(i) is required to be returned under any of the circumstances described in Section  10.06 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Appropriate Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Multicurrency Revolving Credit Pro Rata Share or other applicable share provided for under this Agreement thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any reasonable administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing.

(e)     Obligations Absolute . The obligation of the applicable Borrower to reimburse the relevant L/C Issuer for each drawing under each Letter of Credit issued by it and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i)    any lack of validity or enforceability of such Letter of Credit, this Agreement or any other agreement or instrument relating thereto;

(ii)    the existence of any claim, counterclaim, setoff, defense or other right that any Loan Party may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the relevant L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

(iii)    any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

(iv)    any payment by the relevant L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the relevant L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;

(v)    any exchange, release or non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from the Guaranty or any other guarantee, for all or any of the Obligations of any Loan Party in respect of such Letter of Credit; or

(vi)    any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Loan Party (other than payment in cash or performance in full);

provided that the foregoing in clauses  (i) through (vi)  shall not excuse any L/C Issuer from liability to the applicable Borrower to the extent of any direct damages (as opposed to consequential or exemplary

 

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damages, claims in respect of which are waived by the applicable Borrower to the extent permitted by applicable Law) suffered by the applicable Borrower that are caused by such L/C Issuer’s (or its Related Parties’) gross negligence or willful misconduct as determined in a final and non-appealable judgment by a court of competent jurisdiction when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.

(f)     Role of L/C Issuers . Each Lender and each Borrower agree that, in paying any drawing under a Letter of Credit, the relevant L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, any Agent-Related Person nor any of the respective correspondents, participants or assignees of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Lenders holding a majority of the Multicurrency Revolving Credit Commitments, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct as determined in a final and non-appealable judgment by a court of competent jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Letter of Credit Application. The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to either of their use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the applicable Borrower pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, any Agent-Related Person, nor any of the respective correspondents, participants or assignees of any L/C Issuer, shall be liable or responsible for any of the matters described in clauses  (i) through (vi)  of Section  2.03(e) ; provided that anything in such clauses to the contrary notwithstanding, the applicable Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the applicable Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the applicable Borrower caused by such L/C Issuer’s (or its Related Parties’) willful misconduct or gross negligence or such L/C Issuer’s (or its Related Parties’) willful misconduct or grossly negligent failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit, in each case as determined in a final and non-appealable judgment by a court of competent jurisdiction. In furtherance and not in limitation of the foregoing, each L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and no L/C Issuer shall be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

(g)     Cash Collateral . (i) If, as of the Letter of Credit Expiration Date, any Letter of Credit may for any reason remain outstanding and partially or wholly undrawn, (ii) if any Event of Default occurs and is continuing and the Administrative Agent or the Lenders holding a majority of the Multicurrency Revolving Credit Commitments, as applicable, require the applicable Borrower to Cash Collateralize the L/C Obligations pursuant to Section  8.02 or (iii) if an Event of Default set forth under Section  8.01(f) occurs and is continuing, the applicable Borrower shall Cash Collateralize all L/C Obligations relating to it in an amount equal to 103% of the Effective Amount of such L/C Obligations determined as of such date, and shall do so not later than 2:00 p.m. on (x) in the case of the immediately preceding clauses  (i) and (ii) , the next Business Day following the Business Day that the applicable Borrower receives written notice thereof, and (y) in the case of the immediately preceding clause  (iii) , the Business Day on which an Event of Default set forth under Section  8.01(f) occurs or, if such day is not a Business Day, the Business Day immediately succeeding such day. At any time that there shall exist a Defaulting Lender, promptly upon the written request of the Administrative Agent or the applicable L/C

 

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Issuer, the applicable Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (solely after giving effect to Section  2.17(a)(iv) and any Cash Collateral provided by the Defaulting Lender). For purposes hereof, “ Cash Collateralize ” and “ Cash Collateralization ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the relevant L/C Issuer and the Appropriate Lenders, as collateral for the L/C Obligations, cash or deposit account balances (“ Cash Collateral ”) pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the relevant L/C Issuer (which documents are hereby consented to by the Appropriate Lenders). Derivatives of such term have corresponding meanings. Each Borrower hereby severally grants to the Administrative Agent, for the benefit of the L/C Issuers and the Revolving Credit Lenders of the applicable Facility, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing provided by it. Cash Collateral shall be maintained in blocked accounts at the Administrative Agent and may be invested in readily available Cash Equivalents (for the benefit of the applicable Borrower). If at any time the Administrative Agent determines that any funds held as Cash Collateral are expressly subject to any right or claim of any Person other than the Administrative Agent (on behalf of the Secured Parties) or nonconsensual liens permitted under Section  7.01 or that the total amount of such funds is less than the aggregate Effective Amount of all L/C Obligations of such Borrower, the applicable Borrower will, promptly following written demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the deposit accounts at the Administrative Agent as aforesaid, an amount equal to the excess of (a) such aggregate Effective Amount over (b) the total amount of funds relating to that Borrower, if any, then held as Cash Collateral that the Administrative Agent reasonably determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Law, to reimburse the relevant L/C Issuer. To the extent the amount of any Cash Collateral exceeds the then Effective Amount of such L/C Obligations of such Borrower and so long as no Event of Default has occurred and is continuing, the excess promptly shall be refunded to the applicable Borrower. To the extent any Event of Default giving rise to the requirement to Cash Collateralize any Letter of Credit pursuant to this Section  2.03(g) is cured or otherwise waived by the Required Lenders, then so long as no other Event of Default has occurred and is continuing, all Cash Collateral pledged to Cash Collateralize such Letter of Credit shall be promptly refunded to the applicable Borrower. If at any time the Administrative Agent reasonably determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided or Liens described above, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the applicable Borrower or the relevant Defaulting Lender will, promptly following written demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.

(h)     Letter of Credit Fees . The Borrowers shall pay to the Administrative Agent for the account of each Multicurrency Revolving Credit Lender for the Multicurrency Revolving Credit Facility in accordance with its Multicurrency Revolving Credit Pro Rata Share or other applicable share provided for under this Agreement, a Letter of Credit fee for each Letter of Credit issued pursuant to this Agreement equal to the Applicable Margin then in effect for the relevant currency and for each different Class or Classes of the respective Revolving Credit Lender’s Revolving Credit Commitments at such time multiplied by the daily maximum amount then available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit) ; provided that (x) if any portion of a Defaulting Lender’s Pro Rata Share of any Letter of Credit is Cash Collateralized by the applicable Borrower or reallocated to the other Revolving Credit Lenders pursuant to Section  2.17(a)(iv) , then the applicable Borrower shall not be required to pay a Letter of Credit fee to such Defaulting Lender with respect to such portion of such Defaulting Lender’s Pro Rata Share so long as it is Cash Collateralized by the applicable Borrower or reallocated to the other Revolving Credit Lenders, but such Letter of Credit

 

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fee shall instead be payable to such other Revolving Credit Lenders in accordance with their Pro Rata Share of such reallocated amount, and (y) if any portion of a Defaulting Lender’s Pro Rata Share is not Cash Collateralized or reallocated pursuant to Section  2.17(a)(iv) , then the Letter of Credit fee with respect to such Defaulting Lender’s Pro Rata Share shall be payable to the applicable L/C Issuer until such Pro Rata Share is Cash Collateralized or reallocated or such Lender ceases to be a Defaulting Lender. Such Letter of Credit fees shall be computed on a quarterly basis in arrears. Such Letter of Credit fees shall be due and payable in U.S. Dollars on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the earlier to occur of the Letter of Credit Expiration Date and the Maturity Date then in effect for the applicable Revolving Credit Facility or the date on which the applicable Class of Revolving Credit Commitments of all Lenders holding such Commitments shall be terminated as provided herein. If there is any change in the Applicable Margin during any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect.

(i)     Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers . Each Borrower shall pay directly to each L/C Issuer for its own account a fronting fee (in the relevant currency in which the applicable Letter of Credit is denominated) with respect to each Letter of Credit issued by it on behalf of such Borrower to any Consolidated Party equal to 0.125% per annum of the maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically pursuant to the terms of such Letter of Credit) or such other fee as may be agreed with such L/C Issuer (the “ L/C Fronting Fee ”). Such fronting fees shall be computed on a quarterly basis in arrears. Such fronting fees shall be due and payable in U.S. Dollars (and if the applicable Letter of Credit is in an Alternative Currency, shall be calculated based on the U.S. Dollar Equivalent amount in respect thereof) on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the earlier to occur of the Letter of Credit Expiration Date and the date on which the Revolving Credit Commitment of all Lenders shall be terminated as provided herein. In addition, the applicable Borrower shall pay directly to each L/C Issuer for its own account with respect to each Letter of Credit issued on behalf of the Loan Parties the customary and reasonable issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable within 10 Business Days of demand and are nonrefundable.

(j)     Conflict with Letter of Credit Application . Notwithstanding anything else to the contrary in this Agreement or any Letter of Credit Application, in the event of any conflict between the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.

(k)     Addition of an L/C Issuer . A Multicurrency Revolving Credit Lender reasonably acceptable to the Parent may become an additional L/C Issuer hereunder pursuant to a written agreement among the Borrowers, the Administrative Agent and such Multicurrency Revolving Credit Lender. The Administrative Agent shall notify the Multicurrency Revolving Credit Lenders of any such additional L/C Issuer.

(l)     Reporting . Each L/C Issuer will report in writing to the Administrative Agent (i) on the first Business Day of each calendar month, the aggregate face amount (or the U.S. Dollar Equivalent thereof in the case of any Letters of Credit denominated in an Alternative Currency) of Letters of Credit issued by it and outstanding as of the last Business Day of the preceding calendar month (and on such other dates as the Administrative Agent may request), (ii) on or prior to each Business Day on which such L/C Issuer expects to issue, amend, renew or extend any Letter of Credit, the date of such issuance

 

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or amendment, and the aggregate face amount (or the U.S. Dollar Equivalent thereof in the case of any Letters of Credit denominated in an Alternative Currency) of Letters of Credit to be issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and such L/C Issuer shall advise the Administrative Agent on such Business Day whether such issuance, amendment, renewal or extension occurred and whether the amount thereof changed), (iii) on each Business Day on which such L/C Issuer makes any L/C Disbursement, the date, currency and amount of such L/C Disbursement and (iv) on any Business Day on which the applicable Borrower fails to reimburse an L/C Disbursement required to be reimbursed to such L/C Issuer on such day, the date, currency and amount of such failure.

(m)     Provisions Related to Extended Revolving Credit Commitments . If the Letter of Credit Expiration Date in respect of any tranche of Revolving Credit Commitments occurs prior to the expiry date of any Letter of Credit, then (i) if one or more other tranches of Revolving Credit Commitments in respect of which the Letter of Credit Expiration Date shall not have so occurred are then in effect, such Letters of Credit shall, to the extent such Letters of Credit could have been issued under such other tranches, automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Credit Lenders to purchase participations therein and to make Revolving Credit Loans and payments in respect thereof pursuant to Sections  2.03(c) and (d) ) under (and ratably participated in by Lenders pursuant to) the Revolving Credit Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Revolving Credit Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to the immediately preceding clause  (i) , the applicable Borrower shall Cash Collateralize any such Letter of Credit in accordance with Section  2.03(g) . Commencing with the maturity date of any tranche of Revolving Credit Commitments, the sublimit for Letters of Credit shall be agreed solely with each L/C Issuer.

(n)     Letters of Credit Issued for Subsidiaries . Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Restricted Subsidiary, the applicable Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. Each Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Restricted Subsidiaries (whether or not a direct or indirect Subsidiary of the applicable Borrower) inures to the benefit of that Borrower, and that the applicable Borrower’s business derives substantial benefits from the businesses of such Restricted Subsidiaries.

Section 2.04.     Utilization of Multicurrency Revolving Commitments in an Alternative Currency .

(a)    The Administrative Agent will determine the U.S. Dollar Equivalent amount with respect to any (i) Borrowing of Multicurrency Revolving Credit Loans comprised of Alternative Currency Loans as of the requested date of Borrowing, (ii) outstanding Alternative Currency Loans that are Multicurrency Revolving Credit Loans as of the last Business Day of each month, (iii) outstanding Alternative Currency Loans on the date of any prepayment pursuant to Section  2.05(a) or 2.05(b) , and/or (iv) issue of, or amendment of, any Letter of Credit denominated in Alternative Currency as of the requested date of issue or amendment, respectively (each such date under clauses (i)  through (iv) , a “ Computation Date ”). Upon receipt of any Committed Loan Notice in respect of Multicurrency Revolving Credit Loans, the Administrative Agent will promptly notify each Multicurrency Revolving Credit Lender thereof and of the amount of such Lender’s Multicurrency Revolving Credit Pro Rata Share, of the Borrowing. In the case of a Borrowing comprised of Alternative Currency Loans, such notice will provide the approximate amount of each Lender’s Multicurrency Revolving Credit Pro Rata Share of the Borrowing, and Administrative Agent will, upon the determination of the U.S. Dollar Equivalent amount of the Borrowing as specified in the Committed Loan Notice, promptly notify each Lender of the exact amount of such Lender’s Multicurrency Revolving Credit Pro Rata Share of the Borrowing.

 

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(b)    Each Borrower shall be entitled to request that the Multicurrency Revolving Credit Loans hereunder and Letters of Credit issued hereunder also be permitted to be made in any other lawful currency (other than U.S. Dollars), in addition to the currencies specified in the definition of “Alternative Currency” herein, that is freely traded in the offshore interbank foreign exchange markets and is freely transferable and freely convertible into U.S. Dollars (an “ Agreed Alternative Currency ”). The applicable Borrower shall deliver to the Administrative Agent any request for designation of an Agreed Alternative Currency in accordance with Section  10.02 , to be received by the Administrative Agent not later than 11:00 a.m. (New York City time) at least 15 Business Days in advance of the date of any Borrowing hereunder proposed to be made in such Agreed Alternative Currency (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the applicable L/C Issuer(s), in its or their sole discretion). Upon receipt of any such request the Administrative Agent will promptly notify the Multicurrency Revolving Credit Lenders thereof and each Multicurrency Revolving Credit Lender will use its best efforts to respond to such request within two (2) Business Days of receipt thereof. Each Multicurrency Revolving Credit Lender may grant or accept such request in its sole discretion. Such request shall only result in an Agreed Alternative Currency if all Multicurrency Revolving Credit Lenders agree to provide such Agreed Alternative Currency.

(c)    In the case of a proposed Borrowing comprised of Multicurrency Revolving Credit Loans in an Agreed Alternative Currency, the applicable Multicurrency Revolving Credit Lenders shall be under no obligation to make such Loans in the requested Agreed Alternative Currency as part of such Borrowing if the Administrative Agent has received notice from any of the applicable Multicurrency Revolving Credit Lenders by 3:00 p.m. (New York City time) three (3) Business Days prior to the day of such Borrowing that such Lender cannot provide Loans in the requested Agreed Alternative Currency, in which event the Administrative Agent will give written notice to the applicable Borrower no later than 9:00 a.m. (London time) on the second Business Day prior to the requested date of such Borrowing that the Borrowing in the requested Agreed Alternative Currency is not then available, and notice thereof also will be given promptly by the Administrative Agent to the Multicurrency Revolving Credit Lenders. If the Administrative Agent shall have so notified the applicable Borrower that any such Borrowing in a requested Agreed Alternative Currency is not then available, the applicable Borrower may, by notice to the Administrative Agent not later than 2:00 p.m. (London time) two (2) Business Days prior to the requested date of such Borrowing, withdraw the Committed Loan Notice relating to such requested Borrowing. If a Borrower does so withdraw such Committed Loan Notice, the Borrowing requested therein shall not occur and the Administrative Agent will promptly so notify each Multicurrency Revolving Credit Lender. If a Borrower does not so withdraw such Committed Loan Notice, the Administrative Agent will promptly so notify each Multicurrency Revolving Credit Lender and such Committed Loan Notice shall be deemed to be a Committed Loan Notice that requests a Borrowing comprised of LIBOR Rate Loans in U.S. Dollars with an Interest Period of one month in an aggregate amount equal to the U.S. Dollar Equivalent of the originally requested Borrowing in the Committed Loan Notice; and in such notice by the Administrative Agent to each Lender will state such aggregate amount of such Borrowing in U.S. Dollars and such Lender’s Pro Rata Share thereof.

(d)    In the case of a proposed continuation of Multicurrency Revolving Credit Loans denominated in an Agreed Alternative Currency for an additional Interest Period pursuant to Section  2.02(a) , the Multicurrency Revolving Credit Lenders shall not be under any obligation to continue such Loans if the Administrative Agent has received notice from any of the Multicurrency Revolving Credit Lenders by 4:00 p.m. (New York City time) four (4) Business Days prior to the day of such continuation that such Lender cannot continue to provide Loans in the Agreed Alternative Currency, in which event

 

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the Administrative Agent will give notice to the applicable Borrower not later than 9:00 a.m. (New York City time) on the third Business Day prior to the requested date of such continuation that the continuation of such Loans in the Agreed Alternative Currency is not then available, and notice thereof also will be given promptly by the Administrative Agent to the Multicurrency Revolving Credit Lenders. If the Administrative Agent shall have so notified the applicable Borrower that any such continuation of Loans is not then available, any notice of conversion or continuation with respect thereto shall be deemed withdrawn and such Loans shall be redenominated into LIBOR Rate Loans in U.S. Dollars with an Interest Period of one month with effect from the last day of the Interest Period with respect to any such Loans. The Administrative Agent will promptly notify the applicable Borrower and the Multicurrency Revolving Credit Lenders of any such redenomination and in such notice by the Administrative Agent to each Lender will state the aggregate U.S. Dollar Equivalent amount of the redenominated Alternative Currency Loans as of the Computation Date with respect thereto and such Lender’s Multicurrency Revolving Credit Pro Rata Share thereof.

(e)    If at any time an Alternative Currency Loan denominated in a currency other than Euros is outstanding, the relevant Alternative Currency is replaced as the lawful currency of the country that issued such Alternative Currency (the “ Issuing Country ”) by the Euro so that all payments are to be made in the Issuing Country in Euros and not in the Alternative Currency previously the lawful currency of such country, then such Alternative Currency Loan shall be automatically converted into an Alternative Currency Loan denominated in Euros in a principal amount equal to the amount of Euros into which the principal amount of such Alternative Currency Loan would be converted pursuant to the EMU Legislation and thereafter no further Alternative Currency Loans will be available in such Alternative Currency, with the basis of accrual of interest, notice requirements and payment offices with respect to such Alternative Currency Loan to be that consistent with the convention and practices in the Euro-zone interbank market for Euro denominated loans. Without prejudice and in addition to any method of conversion or rounding prescribed by any relevant EMU Legislation, (i) each reference in this Agreement to a minimum amount (or an integral multiple thereof) in such Alternative Currency shall be replaced by a reference to such reasonably comparable and convenient amount (or an integral multiple thereof) in Euros as the Administrative Agent may from time to time specify and (ii) this Agreement shall be subject to such other reasonable changes of construction as the Administrative Agent may from time to time specify to be necessary or appropriate to reflect the introduction of or changeover to Euros.

(f)    In each case, to the maximum extent permitted under applicable law, the applicable Borrowers from time to time, at the request of any Lender or L/C Issuer, shall pay to such Lender or L/C Issuer the amount of any losses, damages, liabilities, claims, reduction in yield, additional expense, increased cost, reduction in any amount payable, reduction in the effective return of its capital, the decrease or delay in the payment of interest or any other return forgone as reasonably determined by such Lender or L/C Issuer or its Affiliates with respect to an Alternative Currency Loan affected by Section  2.04(e) as a result of the tax or currency exchange resulting from the introduction, changeover to or operation of the Euro in any applicable nation or Eurocurrency market. A certificate of any such Lender or the respective L/C Issuer setting forth such Lender’s or such L/C Issuer’s determination of the amount or amounts necessary to compensate such Lender or such L/C Issuer shall be delivered to the Administrative Agent for delivery to the applicable Borrower and shall be conclusive absent manifest error so long as such determination is made by such Lender or such L/C Issuer on a reasonable basis. The applicable Borrower shall pay such Lender or such L/C Issuer the amount shown as due on any such certificate within 10 Business Days after receipt thereof.

(g)    Notwithstanding anything herein to the contrary, during the existence of an Event of Default, upon the request of the Required Revolving Lenders under the Multicurrency Revolving Credit Facility, all or any part of any outstanding Multicurrency Revolving Credit Loans that are Alternative Currency Loans shall be redenominated and converted into ABR Loans in Dollars with effect from the last day of the Interest Period with respect to any such Alternative Currency Loans. The Administrative Agent will promptly notify the Parent of any such redenomination and conversion request.

 

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Section 2.05.     Prepayments .

(a)     Optional . (i) The Borrowers may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay any Class or Classes of Term Loans and Revolving Credit Loans in whole or in part without premium or penalty (except as expressly set forth in this Section  2.05 ); provided that (1) such notice must be received by the Administrative Agent not later than 1:00 p.m. New York City time in the case of Loans denominated in U.S. Dollars, or 11:00 a.m. London time in the case of Loans denominated in an Alternative Currency (other than Euros), or 11:00 a.m. Brussels time in the case of Loans denominated in Euros (A) three (3) Business Days prior to any date of prepayment of LIBOR Rate Loans and (B) on the Business Day prior to any prepayment of ABR Loans; (2) any prepayment of LIBOR Rate Loans shall be in a minimum principal amount of $2,000,000 (or, with respect to any Loans denominated in an Alternative Currency, the U.S. Dollar Equivalent thereof), or a whole multiple of $1,000,000 (or, with respect to any Loans denominated in an Alternative Currency, the U.S. Dollar Equivalent thereof) in excess thereof; and (3) any prepayment of ABR Loans shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share or other applicable share provided for under this Agreement of such prepayment. Any prepayment of a LIBOR Rate Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section  3.05 . Each prepayment of the principal of, and interest on, any Revolving Credit Loans denominated in an Alternative Currency shall be made in the relevant Alternative Currency (even if the applicable Borrower is required to convert currency to do so). If such notice is given by a Borrower, unless rescinded pursuant to clause (ii)  below, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Loan (other than prepayments of ABR Revolving Credit Loans that are not made in connection with the termination or permanent reduction of the Revolving Credit Commitments) shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section  3.05 . In the case of each prepayment of the Loans pursuant to this Section  2.05(a) , the applicable Borrower may in its sole discretion select the Borrowing or Borrowings to be repaid ( provided that, with respect to any optional prepayment of the Initial Term A Loans, in the absence of direction from the English Borrower, the Administrative Agent shall apply such prepayment to the remaining scheduled Initial Term A Loans repayments in direct order of maturity), and such payment shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Shares or other applicable share provided for under this Agreement.

(ii)    Notwithstanding anything to the contrary contained in this Agreement, the applicable Borrower may rescind any notice of prepayment under Section  2.05(a)(i) by notice to the Administrative Agent on the date of prepayment if such prepayment would have resulted from a refinancing of all or any portion of the applicable Class or occurrence of another event, which refinancing or event shall not be consummated or shall otherwise be delayed (subject to payment of amounts due under Section  3.05 ).

(iii)    Voluntary prepayments of any Class of Term Loans permitted hereunder shall be applied as directed by the English Borrower and otherwise first to ABR Loans to the full extent thereof before application to LIBOR Rate Loans, in a manner that minimizes the amount of any payments required to be made by such Borrower pursuant to Section  3.05 .

 

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(iv)    Voluntary prepayments of any Class of Term Loans permitted hereunder shall be applied to the remaining scheduled installments of principal thereof pursuant to Section  2.07(a) in a manner determined at the discretion of the English Borrower and specified in the notice of prepayment (and absent such direction, in direct order of maturity).

(b)     Mandatory . (i) [Reserved].

(ii)    If (1) any Consolidated Party Disposes of any property or assets pursuant to Section  7.05(i) , (p) or (s) , or (2) any Casualty Event occurs, in either case that results in the receipt by a Consolidated Party of Net Proceeds, the applicable Borrower shall cause to be prepaid on or prior to the date that is five (5) Business Days after the date of the receipt by such Borrower or any Restricted Subsidiary of such Net Proceeds (or such later time that such Borrower is entitled to reinvest Net Proceeds as provided in the definition of “Net Proceeds”), an aggregate principal amount of Term Loans in an amount equal to 100% of all such Net Proceeds; provided that if at the time that any such prepayment would be required, such Borrower is required to offer to repurchase or prepay any Permitted Refinancing of any such Indebtedness (to the extent secured by Liens on the Collateral on a pari passu basis with the Obligations), in each case pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Disposition or Casualty Event required to be offered to be so repurchased, “ Other Applicable Indebtedness ”), then such Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided , further , that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section  2.05(b)(ii) shall be reduced accordingly; provided , further , that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within five (5) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.

(iii)    If any Consolidated Party incurs or issues any Indebtedness after the Closing Date (A) not permitted to be incurred or issued pursuant to Section  7.03 or (B) that is intended to constitute Credit Agreement Refinancing Indebtedness in respect of, or Replacement Term Loans incurred to refinance (in accordance with the requirements of Section  10.01 ) any Class of Term Loans, the applicable Borrower shall cause to be prepaid an aggregate principal amount of Term Loans (or, in the case of Indebtedness constituting Credit Agreement Refinancing Indebtedness or Replacement Term Loans, the applicable Class of Term Loans) in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date that is three (3) Business Days after the receipt by such Consolidated Party of such Net Proceeds.

(iv)    If for any reason the aggregate Effective Amount of Revolving Credit Loans and L/C Obligations of any Class at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the applicable Borrower shall promptly prepay Revolving Credit Loans of that Class and/or Cash Collateralize the L/C Obligations in respect of that Class in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any such L/C Obligations in respect of such Class pursuant to this Section  2.05(b)(iv) unless, after the prepayment in full of all outstanding Revolving Credit Loans of such Class, such aggregate Effective Amount exceeds the aggregate Revolving Credit Commitments of that Class then in effect.

 

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(v)    If, after the application of any Net Proceeds in accordance with Section  2.05(b)(ii) and Section  2.05(b)(iii) above, the entire amount of Term Loans outstanding hereunder have been repaid in full, any amount of such Net Proceeds in excess of the amount required to effect such repayment in full shall be applied first , to repay outstanding Revolving Credit Loans and second , after any outstanding Revolving Credit Loans have been repaid in full, to Cash Collateralize any outstanding L/C Obligations, provided that such repayment or Cash Collateralization shall not result in any corresponding permanent reduction in the related Revolving Credit Commitments.

(vi)    Except as otherwise provided in any Refinancing Amendment, Extension Amendment, any Incremental Amendment or Replacement Term Loans Amendment or as otherwise provided herein, (A) each prepayment of Term Loans pursuant to this Section  2.05(b) shall be applied ratably to each Class of Term Loans then outstanding ( provided that any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt), (B) with respect to each Class of Term Loans, each prepayment pursuant to clause  (ii) or (iii)  of this Section  2.05(b) shall be applied to the scheduled installments of principal thereof following the date of such prepayment in direct order of maturity and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.

(vii)    The applicable Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans or Revolving Credit Loans or Cash Collateralization of any outstanding L/C Obligations required to be made by such Borrower pursuant to clause  (ii) or (iii)  of this Section  2.05(b) not later than 1:00 p.m. New York City time in the case of any Loan or L/C Obligation denominated in U.S. Dollars, or 11:00 a.m. London time in the case of any Loan or L/C Obligation denominated in an Alternative Currency (other than Euros), or 11:00 a.m. Brussels time in the case of any Loan or L/C Obligation denominated in Euros, at least three (3) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made by such Borrower. The Administrative Agent will promptly notify each Appropriate Lender of the contents of such Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “ Declined Proceeds ”) of Term Loans required to be made pursuant to clause (ii)  or (iii)(A) of this Section  2.05(b) by providing written notice (each, a “ Rejection Notice ”) to the Administrative Agent no later than 5:00 p.m. one (1) Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment; provided , however , in no event may the proceeds of any Credit Agreement Refinancing Indebtedness be rejected. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be retained by the applicable Borrower.

(viii)    In connection with any mandatory prepayments by the applicable Borrower of the Term Loans pursuant to this Section  2.05(b) , such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or LIBOR Rate Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to Section

 

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2.05(b)(vii) , then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are LIBOR Rate Loans in a manner that minimizes the amount of any payments required to be made by such Borrower pursuant to Section  3.05 .

(ix)    Notwithstanding any other provisions of this Section  2.05(b) , (A) to the extent that the Parent has determined that the repatriation or upstreaming to the United States or the United Kingdom of any or all of the Net Proceeds of any Disposition by a Non-U.S. Subsidiary giving rise to a prepayment event pursuant to Section  2.05(b)(ii) (an “ Affected Disposition ”) or the Net Proceeds of any Casualty Event from a Non-U.S. Subsidiary (an “ Affected Casualty Event ”) is prohibited under any Requirement of Law, would conflict with the fiduciary duties of such Non-U.S. Subsidiary’s directors, or would result in, or could reasonably be expected to result in, a risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Non-U.S. Subsidiary, the portion of such Net Proceeds so affected will not be required to be applied to repay Loans at the times provided in this Section  2.05(b) but shall be retained by the applicable Non-U.S. Subsidiary and shall be available for working capital and general corporate purposes of the Parent and its Restricted Subsidiaries for so long, but only so long, as such repatriation remains prohibited under Requirement of Law, would conflict with the fiduciary duties of such Non-U.S. Subsidiary’s directors, or would result in, or could reasonably be expected to result in, a risk of personal or criminal liability for the Persons described above (and the Parent hereby agrees to undertake to use commercially reasonable efforts for up to two (2) years to overcome or eliminate any such restrictions (subject to the considerations above and as determined in good faith in the Parent’s reasonable business judgment) to cause such repatriation to the United States and/or the United Kingdom); provided , however , that once the Parent has determined in good faith that such repatriation of any of such affected Net Proceeds is permitted under Requirement of Law, no longer would conflict with the fiduciary duties of such Non-U.S. Subsidiary’s directors, or no longer would result in, or reasonably be expected to result in, a risk of personal or criminal liability for the Persons described above, such repatriation will be promptly effected and such repatriated Net Proceeds will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of any taxes payable or reserved against, and costs and expenses incurred or payable by Parent or any of its Subsidiaries, in each case as a result thereof) to the repayment of the Loans pursuant to this Section  2.05(b) to the extent provided herein and (B) to the extent that the Parent has determined in good faith that the repatriation or upstreaming of any or all of the Net Proceeds of any Affected Disposition or any Affected Casualty Event could have a material adverse tax cost or regulatory consequence (including the imposition of material withholding taxes and taking into account any tax credit or benefit actually realized in connection with, and at the time of, such repatriation) with respect to such Net Proceeds, the portion of such Net Proceeds so affected will not be required to be applied to repay Loans at the times provided in this Section 2.05(b) but shall be retained by the applicable Non-U.S. Subsidiary and shall be available for working capital and general corporate purposes of the Parent and its Restricted Subsidiaries for so long, but only so long, as such repatriation could have such material adverse tax cost or regulatory consequence (and the Parent hereby agrees to undertake to use commercially reasonable efforts for up to two (2) years to overcome or eliminate any such material adverse tax costs or regulatory consequences (subject to the considerations above and as determined in good faith in the Parent’s reasonable business judgment) to cause such repatriation to the United States and/or the United Kingdom); provided, however , that once the Parent has determined in good faith that such repatriation of any of such affected Net Proceeds can be effected without having such material adverse tax cost or regulatory consequence, such repatriation will be promptly effected and such repatriated Net Proceeds will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of any taxes payable or reserved against, and costs and expenses incurred or payable by Parent or any of its Restricted Subsidiaries, in each case as a result thereof) to the repayment of the Loans pursuant to this Section 2.05(b) to the extent provided herein.

 

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(c)     Interest, Funding Losses, Etc . All prepayments under this Section  2.05 shall be accompanied by all accrued interest thereon (other than prepayments of ABR Revolving Credit Loans that are not made in connection with the termination or permanent reduction of the Revolving Credit Commitments), together with, in the case of any such prepayment of a LIBOR Rate Loan on a date prior to the last day of an Interest Period therefor, any amounts owing in respect of such LIBOR Rate Loan pursuant to Section  3.05 .

Notwithstanding any of the other provisions of this Section  2.05 , so long as no Event of Default shall have occurred and be continuing, if any prepayment of LIBOR Rate Loans is required to be made under this Section  2.05 prior to the last day of the Interest Period therefor, in lieu of making any payment pursuant to this Section  2.05 in respect of any such LIBOR Rate Loan prior to the last day of the Interest Period therefor, the applicable Borrower may, in its sole discretion, deposit an amount sufficient to make any such prepayment otherwise required to be made thereunder together with accrued interest to the last day of such Interest Period into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from such Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section  2.05 . Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the applicable Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with the relevant provisions of this Section  2.05 . Such deposit shall be deemed to be a prepayment of such Loans by such Borrower for all purposes under this Agreement.

Section 2.06.     Termination or Reduction of Commitments .

(a)     Optional . The Borrowers may, upon written notice to the Administrative Agent, terminate the unused Commitments of any Class, or from time to time permanently reduce the unused Commitments of any Class, in each case without premium or penalty; provided that (i) any such notice shall be received by the Administrative Agent three (3) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 (or the U.S. Dollar Equivalent thereof in the case of any Commitments denominated in an Alternative Currency), or any whole multiple of $1,000,000 (or the U.S. Dollar Equivalent thereof in the case of any Commitments denominated in an Alternative Currency) in excess thereof or, if less, the entire amount thereof and (iii) if, after giving effect to any reduction of the Revolving Credit Commitments, the Letter of Credit Sublimit exceeds the amount of the Revolving Credit Commitments, such sublimit shall be automatically reduced by the amount of such excess. Except as provided above, the amount of any such Commitment reduction shall not be applied to the Letter of Credit Sublimit unless otherwise specified by the Borrowers. Notwithstanding the foregoing, the Borrowers may rescind or postpone any notice of termination of any Commitments if such termination would have resulted from a refinancing of all or any portion of the applicable Class or occurrence of other event, which refinancing or other event shall not be consummated or otherwise shall be delayed.

(b)     Mandatory . The Initial Term A Commitments of each Term Lender shall be automatically and permanently reduced to $0 upon the funding of the Initial Term A Loans to be made by such Term Lender on the Closing Date. The Revolving Credit Commitments of each Revolving Credit Lender shall automatically and permanently terminate on the respective Maturity Date for each Class of Revolving Credit Commitments.

 

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(c)     Application of Commitment Reductions; Payment of Fees . The Administrative Agent will promptly notify the Appropriate Lenders of any termination or reduction of unused portion of the Letter of Credit Sublimit or the unused Commitments of any Class under this Section  2.06 . The amount of any such reduction of the Revolving Credit Commitments shall not be applied to the Letter of Credit Sublimit unless otherwise specified by the Borrowers. Upon any reduction of unused Commitments of any Class, the Commitment of each Lender of such Class shall be reduced by such Lender’s Pro Rata Share of the amount by which such Commitments are reduced. All commitment fees accrued until the effective date of any termination of the Aggregate Commitments of any Class shall be paid to the Appropriate Lenders on the effective date of such termination.

Section 2.07.     Repayment of Loans .

(a)     Term Loans .

The English Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders, on the Maturity Date for Initial Term A Loans, the aggregate principal amount of all such Initial Term A Loans then outstanding due and payable on such date.

(b)     Revolving Credit Loans . The Borrowers shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders on the Maturity Date for the applicable Revolving Credit Facility the aggregate principal amount of all Revolving Credit Loans under such Facility outstanding on such date.

Section 2.08.     Interest .

(a)    Subject to the provisions of Section  2.08(b) , (i) each LIBOR Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the LIBOR Rate for such Interest Period plus the Applicable Margin and (ii) each ABR Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the ABR plus the Applicable Margin.

(b)    After the occurrence and during the continuance of an Event of Default under Section  8.01(a) or 8.01(f) , each Borrower shall pay interest on past due amounts owing by it hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate, which interest on past due amounts shall be payable in lieu of (and not in addition to) any interest on such past due amounts that would otherwise be payable pursuant to Section  2.08(a) ; provided that no interest at the Default Rate shall accrue or be payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender. Accrued and unpaid interest on such amounts (including interest on past due interest) shall be due and payable upon written demand.

(c)    Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

Section 2.09.     Fees . In addition to certain fees described in Sections  2.03(h) and (i) :

(a)     Facility Fee . The Borrowers agree to pay to the Administrative Agent for the account of each Revolving Credit Lender under the Multicurrency Revolving Credit Facility in accordance with its Pro Rata Share or other applicable share provided for under this Agreement, a facility fee equal to the Applicable Facility Fee Percentage multiplied by the actual daily amount of the aggregate

 

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Multicurrency Revolving Credit Commitments (whether used or unused); provided that any facility fee accrued with respect to any of the unused Multicurrency Revolving Credit Commitments of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrowers so long as such Lender shall be a Defaulting Lender except to the extent that such facility fee shall otherwise have been due and payable by the Borrowers prior to such time; provided , further , that no facility fee shall accrue on any of the unused Multicurrency Revolving Credit Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The facility fee on the Multicurrency Revolving Credit Facility shall commence to accrue on and including the Closing Date and shall cease to accrue on the date on which the applicable Multicurrency Revolving Credit Commitments of such Lender shall expire or be terminated as provided herein and such Lender no longer has any Revolving Credit Exposure in respect of the Multicurrency Revolving Credit Facility, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur during the first full fiscal quarter after the Closing Date, and on the Maturity Date for such Revolving Credit Facility. Notwithstanding the foregoing, to the extent any Lender has Revolving Credit Exposure in respect of the Multicurrency Revolving Credit Facility notwithstanding expiration or termination of the applicable Multicurrency Revolving Credit Commitments, such facility fee shall continue to accrue on such Revolving Credit Exposure for so long as such Revolving Credit Exposure remains outstanding and shall be payable on demand. The facility fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Margin during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect.

(b)     Other Fees . The Borrowers shall pay to the Agents such fees as shall have been separately agreed upon in writing (including pursuant to the Fee Letter) in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrowers and the applicable Agent).

Section 2.10.     Computation of Interest and Fees . All computations of interest for ABR Loans (including ABR Loans determined by reference to the LIBOR Rate) shall be made on the basis of a year of 365 days, or 366 days, as applicable, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section  2.12(a) , bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

Section 2.11.     Evidence of Indebtedness .

(a)    The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as a non-fiduciary agent for the Borrowers, in each case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to their respective Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of

 

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manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), Applicable Currency, amount and maturity of its Loans and payments with respect thereto.

(b)    In addition to the accounts and records referred to in Section  2.11(a) , each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing the purchases and sales by such Lender of participations in Letters of Credit. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

(c)    Entries made in good faith by the Administrative Agent in the Register pursuant to Sections 2.11(a) and (b) , and by each Lender in its account or accounts pursuant to Section  2.11(a) and (b) , shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from each Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrowers to repay the Loans in accordance with their terms.

Section 2.12.     Payments Generally .

(a)    All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to payments in an Alternative Currency, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office for payment in U.S. Dollars and in Same Day Funds not later than 1:00 p.m. (New York City time) on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder in an Alternative Currency shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in such Alternative Currency and in Same Day Funds not later than 1:00 p.m. (London time) on the dates specified herein. If, for any reason, a Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, that Borrower shall make such payment in U.S. Dollars in the U.S. Dollar Equivalent amount of the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share provided for under this Agreement) of such payment in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative Agent after the applicable time specified above shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.

(b)    Except as otherwise provided herein, if any payment to be made by the Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of LIBOR Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

 

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(c)    Unless the applicable Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that such Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that such Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in Same Day Funds, then:

(i)    if the applicable Borrower has failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in Same Day Funds at the applicable Overnight Rate from time to time in effect; and

(ii)    if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the applicable Borrower to the date such amount is recovered by the Administrative Agent (the “ Compensation Period ”) at a rate per annum equal to the applicable Overnight Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the applicable Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder.

A written notice (including documentation reasonably supporting such request) of the Administrative Agent to any Lender or the applicable Borrower with respect to any amount owing under this Section  2.12(c) shall be conclusive, absent manifest error.

(d)    If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article  II , and such funds are not made available to the applicable Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article  IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(e)    The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on